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A  NEW  PROVINCE  FOR  LAW  AND 
ORDER 


First  published,  1922 


A  NEW  PROVINCE 
FOR  LAW  &"  ORDER 

BEING  A  REVIEW,  BY  ITS  LATE  PRESIDENT 
FOR  FOURTEEN  YEARS,  OF  THE  AUSTRALIAN 
COURT  OF   CONCILIATION   AND   ARBITRATION 


By 
HENRY  BOURNES  HIGGINS,  M.A.,  LL.B. 

JUSTICE  OF   THE    HIGH    COURT   OF    AUSTRALIA,    AND 
PRESIDENT   OF   THE   COURT  OF   CONCILIATION    AND    ARBITRATION,    1907-1921 


NEW  YORK 
E.   P.   BUTTON  AND   COMPANY 

PUBLISHERS 


60229 


FRINTED    IN    GREAT    BRITAIN    BY 
BILLING   AND    SONS,    LTD.,    GUILDFORD    AND    ESHER 


.^ 


-? 


^ 


.-' -.3  0 


PREFACE 


It  has  been  suggested  to  me  by  friends  who  take  an 
active   interest   in   the   solution   of  the  world's  in- 
K      dustrial  problems — friends  in  several  countries — that 
I  should  state  in  book  form  the  results  of  my  ex- 
perience of  nearly  fourteen  years,  now  that  I  have 
resigned  the  presidency  of  the  Commonwealth  Court 
of  Conciliation  and  Arbitration.     To  comply  with 
the  suggestion,  I  think  that  I  cannot  do  better  than 
collect  three  articles  which  I  wrote  for  the  Harvard 
Law    Review  of    November,    1915,   January,    1919, 
December,  1920,  and  then  add  some  supplemental 
matter  and  general  conclusions.     The  editors  of  the 
Review  have  been  good   enough   to   assent   to  this 
course.     I  hope  that  my  friends  will  not  regard  it  as 
a  device  to  spare  myself  effort.     There  is  this  advan- 
tage, that  as  the  articles  appeared  at  considerable 
intervals  they  are  really  a  better  indication  of  the 
gradual  development  of  standards  and  practice  in 
the  solution  of  actual  problems  than  any  synthetic 
statement  of  the  present  position  would  be.     I  had 
to  learn  the  business,  with  no  book  of  instructions, 
no  teacher  other  than    experience,  no  kindly  light 
except  from  the  pole  star  of  justice.     It  is  my  hope 
that  this  little  book  will  afford  some  encouragement 
to  men   of  public  spirit  who  are   endeavouring  to 


VI 


PREFACE 


bring  some  order  out  of  the  present  industrial  chaos, 
for  they  will  see  how  standards  have  been  created 
for  industrial  relations,  how  the  human  instruments 
of  industry  have  had  their  lives  brightened,  and  how 
extremely  few  have  been  the  stoppages  of  work  in 
disputes  within  the  competence  of  the  Court.  The 
book  may  also  throw  some  light  on  certain  dangerous 
rocks  which  discreet  Governments  and  Parliaments 
would  avoid. 

I  desire  to  express  my  thanks  to  Mr.  G.  V.  Portus, 
Director  of  Tutorial  Classes  in  Sydney  and  General 
Editor  of  the  W.E.A.  Series,  for  his  encouragement 
and  valuable  assistance  in  preparing  this  little  book 
for  the  press. 


H.  B.  HIGGINS. 


Melbourne, 

March,  1922. 


CONTENTS 

CHAPTER  I. 

PAGE 

An  Article  contributed  to  the  Harvard  Law 
Review,  published  in  November,  1915  -  -       i 

CHAPTER  II. 

An  Article  contributed  to  the  Harvard  Law 
Review^  published  in  January,  1919     -  -      39 

CHAPTER  III. 

An  Article  contributed  to  the  Harvard  Law 
Review^  published  in  December,  1920  - 

CHAPTER  IV. 

Subsequent  Decisions  -  -  -  -  -    124 

CHAPTER  V. 
The  Future  of  Industrial  Tribunals       ■  -    145 

APPENDICES. 

A,  Industrial  Peace  Act,  1920;  assented  to  Septem- 

ber 13,  1920  ------    169 

B.  Statement   made   in    Court    by    Mr,   Justice 

Higgins    on    Announcing    his    Resignation 
(September  25,  1920)         -  -  -  -    172 

Index         -  -  -  -  -  -  -    i77 


A  NEW  PROVINCE  FOR  LAW 
AND  ORDER 

CHAPTER  I. 

An  Article  contributed  to  the  Harvard  Law 
Review,  published  in  November,  1915. 

The  new  province  is  that  of  the  relations  between 
employers  and  employees.  Is  it  possible  for  a 
civilized  community  so  to  regulate  these  relations 
as  to  make  the  bounds  of  the  industrial  chaos 
narrower,  to  add  new  territory  to  the  domain  of 
order  and  law  ?  The  war  between  the  profit-maker 
and  the  wage-earner  is  always  with  us ;  and,  although 
not  so  dramatic  or  catastrophic  as  the  present  war 
in  Europe,  it  probably  produces  in  the  long  run  as 
much  loss  and  suffering,  not  only  to  the  actual  com- 
batants, but  also  to  the  public.  Is  there  no  remedy  ? 
During  a  brief  sojourn  in  the  United  States  in  the 
summer  of  1914,  I  had  the  good  fortune  to  meet 
many  men  and  women  of  broad  and  generous  outlook 
and  of  admirable  public  spirit.  They  were  anxious 
to  learn  what  I,  as  President  of  the  Australian  Court 
of  Conciliation  and  Arbitration,  could  tell  them  of 
Australian  methods  of  dealing  with  labour  questions. 
I  propose  now,  on  the  invitation  of  the  editor  of  this 
Review,  to  state  briefly  the  present  position,  con- 
fining my  survey  to  my  own  personal  experience. 


2  A  NEW  PROVINCE 

The  Australian  Federal  Constitution  of  1900  gave 
to  the  Federal  Parliament  power  to  make  laws  with 
respect  to  "  conciliation  and  arbitration  for  the  pre- 
vention and  settlement  of  industrial  disputes  extend- 
ing beyond  the  limits  of  any  one  State." ^  Following 
the  example  of  the  United  States  Constitution,  the 
Constitution  left  all  residuary  powers  of  legislation 
to  the  States ;  and  the  theory  generally  held  at  the 
time  of  our  constitutional  convention  was  that  each 
State  should  be  left  to  deal  with  its  own  labour  con- 
ditions as  it  thought  best.  But  an  exception  was 
made,  after  several  discussions,  in  favour  of  labour 
disputes  which  pass  beyond  State  boundaries  and 
cannot  be  effectually  dealt  with  by  the  laws  of  any 
one  or  more  States.  Just  as  bushfires  run  through 
the  artificial  State  lines,  just  as  the  rabbits  ignore 
them  in  pursuit  of  food,  so  do,  frequently,  industrial 
disputes. 

In  pursuance  of  this  power,  an  Act  was  passed 
December  15,  1904,  constituting  a  Court  for  con- 
ciliation, and  where  conciliation  is  found  impractic- 
able, arbitration.  The  arbitration  is  compulsory  in 
the  sense  that  an  award,  if  made,  binds  the  parties. 
The  Act  makes  a  strike  or  a  lock-out  an  offence  if  the 
dispute  is  within  the  ambit  of  the  Act — if  the  dispute 
is  one  that  extends  beyond  the  limits  of  one  State. 
In  other  words,  the  process  of  conciliation,  with 
arbitration  in  the  background,  is  substituted  for  the 
rude  and  barbarous  processes  of  strike  and  lock-out. 
Reason  is  to  displace  force  ;  the  might  of  the  State 
is  to  enforce  peace  between  industrial  combatants  as 
well  as  between  other  combatants ;  and  all  in  the 
interest  of  the  public. 

1  Sec.  51  (XXXV.). 


FOR  LAW  AND  ORDER  3 

Under  the  Act,  the  Court  consists  of  a  President, 
who  must  be  one  of  the  justices  of  the  High  Court 
of  Australia.  The  High  Court  is  modelled  on  the 
Supreme  Court  of  the  United  States,  having  often 
to  decide  whether  Acts  are  constitutional,  but  it  is 
also  a  Court  of  Appeal  from  the  Supreme  Courts  of 
the  States.  The  first  President  of  the  Court  of  Con- 
ciliation was  appointed  February  10,  1905,  and,  on 
his  resignation  in  September,  1907,  I  was  appointed 
as  his  successor. 

The  first  task  that  I  had  to  face  was  not,  strictly 
speaking,  conciliation  or  arbitration.  The  Federal 
Parliament  imposed  certain  excise  duties  on  agricul- 
tural implements  manufactured,  but  it  provided  for 
the  remission  of  the  duties  in  the  case  of  goods 
manufactured  under  conditions,  as  to  the  remunera- 
tion of  labour,  which  the  President  of  the  Court 
should  certify  to  be  "fair  and  reasonable."^  The 
Act  gave  no  guidance  as  to  the  model  or  criterion 
by  which  fairness  and  reasonableness  were  to  be 
determined.  In  dealing  with  the  first  employer  who 
applied  to  me  for  a  certificate,  I  came  to  the  conclu- 
sion that  the  Act  was  designed  for  the  benefit  of 
employees,  and  that  it  was  meant  to  secure  for  them 
something  which  they  could  not  get  by  individual 
bargaining  with  their  employers.  If  A  let  B  have 
the  use  of  his  horse  on  the  terms  that  B  give  the 
horse  fair  and  reasonable  treatment,  B  would  have 
to  give  the  horse  proper  food  and  water,  shelter  and 
rest.  I  decided  therefore  to  adopt  a  standard  based 
on  "the  normal  needs  of  the  average  employee, 
regarded  as  a  human  being  living  in  a  civilized 
community."  This  was  to  be  the  primary  test  in 
1  Excise  Tariff  1906. 


4  A  NEW  PROVINCE 

ascertaining  the  minimum  wage  that  would  be 
treated  as  "  fair  and  reasonable  "  in  the  case  of  un- 
skilled labourers.  At  my  suggestion,  many  household 
budgets  were  stated  in  evidence,  principally  by  house- 
keeping women  of  the  labouring  class ;  and,  after 
selecting  such  of  the  budgets  as  were  suitable  for 
working  out  an  average,  I  found  that  in  Melbourne, 
the  city  concerned,  the  average  necessary  expenditure 
in  1907  on  rent,  food,  and  fuel,  in  a  labourer's  house- 
hold of  about  five  persons,  was  £1  12s.  5d.  (about 
$7.80,  taking  a  dollar  as  equivalent  to  4s.  2d.) ;  but 
that,  as  these  figures  did  not  cover  light,  clothes, 
boots,  furniture,  utensils,  rates,  life  insurance, 
savings,  accident  or  benefit  societies,  loss  of  employ- 
ment, union  pay,  books  and  newspapers,  tram  or  train 
fares,  sewing  machine,  mangle,  school  requisites, 
amusements  and  holidays,  liquors,  tobacco,  sickness 
or  death,  religion  or  charity,  I  could  not  certify  that 
any  wages  less  than  42s.  per  week  for  an  unskilled 
labourer  would  be  fair  and  reasonable.  Then,  in 
finding  the  wages  which  should  be  treated  as  fair 
and  reasonable  in  the  cases  of  the  skilled  employees, 
I  relied  mainly  on  the  existing  ratios  found  in  the 
practice  of  employers.  If,  for  instance,  the  sheet- 
iron  worker  got  8s.  per  day  when  the  labourer  got 
6s.,  the  sheet-iron  worker  should  get,  at  the  least, 
9s.  when  the  labourer's  minimum  was  raised  to  7s. 

In  the  case  referred  to,  the  employer  did  not  raise 
before  me  the  point  that  the  Act  was  invalid;  but, 
having  failed  in  his  application  for  a  certificate,  he 
refused  to  pay  the  excise  duty,  and  defended  an 
action  to  recover  the  duty  before  the  High  Court  on 
the  ground  that  the  Act  was  invalid ;  and  he  suc- 
ceeded, by  a  majority  of  three  justices  to  two,  on 


FOR  LAW  AND  ORDER  5 

the  ground  that  the  Act  was  not  really  a  taxation  Act 
at  all,  but  an  Act  to  regulate  labour  conditions,  and 
as  such  beyond  the  competence  of  the  Federal 
Parliament.^  But  the  principles  adopted  in  the  case 
for  ascertaining  a  "fair  and  reasonable"  minimum 
wage  have  survived  and  are  substantially  accepted,  I 
believe  universally,  in  the  industrial  life  of  Australia. 

In  the  first  true  arbitration  case — that  relating  to 
ship's  cooks,  bakers,  etc. — the  standard  of  7s.  per 
day  was  attacked  by  employers,  but  I  do  not  think 
that  it  has  been  attacked  since,  probably  because  the 
cost  of  living  has  been  rising.  The  Court  announced 
that  it  would  ascertain  first  the  necessary  living  wage 
for  the  unskilled  labourer,  and  then  the  secondary 
wage  due  to  skill  or  other  exceptional  qualifications 
necessary.  Treating  marriage  as  the  usual  fate  of 
adult  men,  a  wage  which  doqg  not  allow  of  the 
matrimonial  condition  and  the  maintenance  of  about 
five  persons  in  a  home  would  not  be  treated  as  a 
living  wage.  As  for  the  secondary  wage,  it  seemed 
to  be  the  safest  course,  for  an  arbitrator  not  initiated 
into  the  mysteries  of  the  several  crafts,  to  follow  the 
distinctions  in  grade  between  employers  as  expressed 
in  wages  for  many  years. 

The  distinction  between  the  basic  or  primary  or 
living  wage  and  the  secondary  wage  attributable  to 
exceptional  qualifications  necessary  for  the  perform- 
ance of  the  function  is  not  fanciful ;  it  was  forced  on 
the  Court  by  the  problems  presented  and  by  the 
facts  of  industrial  life.  Yet  it  has  to  be  borne  in 
mind  that  though  the  essential  natural  needs  come 
first,  the  conventional  needs  {e.g.,  of  artisans  as  dis- 

1  King  V.  Barger,  Commonwealth  v.  McKay,  6  C.L.R.  41 
(1908). 


6  A  NEW  PROVINCE 

tinguished  from  labourers)  become,  by  usage,  almost 
equally  imperative.^ 

The  following  propositions  may,  I  think,  be  taken 
to  be  established  in  the  settlement  of  minimum 
wages  by  the  Court ;  and  it  is  surprising  to  find  how 
often,  as  the  principles  of  the  Court's  action  come  to 
be  understood  and  appreciated,  they  guide  parties 
disputing  to  friendly  collective  agreements,  without 
any  award  made  by  the  Court. 

1.  One  cannot  conceive  of  industrial  peace  unless 
the  employee  has  secured  to  him  wages  sufficienj;  for 
the  essentials  of  human  existence.  ^ 

2.  This,  the  basic  wage,  must  secure  to  the 
employee  enough  wherewith  to  renew  his  strength 
and  to  maintain  his  home  from  day  to  day.^ 

3.  The  basic  wage  is  the  same  for  the  employee 
with  no  family  as  for  the  employee  with  a  large 
family.  It  rests  on  Walt  Whitman's  "divine 
average,"  and  the  employer  need  not  concern  him- 
self with  his  employee's  domestic  affairs. 

4.  The  secondary  wage  is  remuneration  for  any  ex- 
ceptional gifts  or  qualifications,'*  not  of  the  individual 
employee,  but  gifts  or  qualifications  necessary  for  the 
performance  of  the  functions,  e.g.,  skill  as  a  trades- 
man, exceptional  heart  and  physique,  as  in  the  case 
of  a  gas  stoker,^  exceptional  muscular  training  and 
power,    as   in   the   case  of   a   shearer,^   exceptional 

1  Engine-drivers,  7  C.A.R.  132,  139  (1913). 

2  Boot-factories,  4  C.A.R.  i,  10  (1910)  ;  Seamen,  5  C.A.R. 
147,  164  (191 1). 

3  Broken  Hill  Mine,  3  C.A.R.  i,  20  (1909). 

*  Boot-factories,  4  C.A.R.  i,  10  (1910)  ;  Postal  Electricians, 

7  C.A.R.  5,  10  (1913)  ;  Builders'  Labourers,  7  C.A.R.  210,  217 

(1913)- 

s  Gas  Employees,  7  C.A.R.  58,  71  (1913), 
8  Shearers,  5  CA.R.  48,  79  (191 1). 


FOR  LAW  AND  ORDER  7 

responsibilit}^  e.g.,  for  human  life,  as  in  the  case  of 
winding  or  locomotive  engine-drivers.  ^ 

5.  The  secondary  wage,  as  far  as  possible,  preserves 
the  old  margin  between  the  unskilled  labourer  and 
the  employee  of  the  skilled  or  exceptional  class.  ^ 

6.  After  ascertaining  the  proper  wages,  basic  and 
secondary,  the  Court  considers  any  evidence  adduced 
to  show  that  the  employers  ought  not  to  be  asked  to 
pay  such  wages.  ^  It  will  consider  grounds  of  finance, 
of  competition  with  imports,  of  unfairness  to  other 
workers,  of  undue  increase  of  prices  of  the  product, 
of  injury  to  the  public,  etc. 

7.  The  wages  cannot  be  allowed  to  depend  on  the 
profits  made  by  the  individual  employer,  but  the 
profits  of  which  the  industry  is  capable  may  be  taken 
into  account.  If  the  industry  is  novel,  and  those  who 
undertake  it  have  to  proceed  economically,  there 
may  be  a  good  case  for  keeping  down  wages,  but 
not  below  the  basic  wage,  which  must  be  sacro- 
sanct. Above  the  basic  wage,  bargaining  of  the 
skilled  employee  may,  with  caution,  be  allowed  to 
operate."* 

8.  The  fact  that  a  mine  is  becoming  exhausted  or 
poorer  in  its  ores  is  not  a  ground  for  prescribing  a 
lower  rate  than  would  otherwise  be  proper.  If 
shareholders  are  willing  to  stake  their  own  money 
on  a  speculation,  they  should  not  stake  part  of  the 
employee's  proper  wages  also.     The  Court  cannot 

1  Engine-drivers,  5  C.A.R.  9,  21  (191 1). 

2  McKay,  2  C.A.R.  i,  16(1907);  Ship's  Cooks,  2  C.A.R,  55, 
65,  66  (1908). 

3  Broken  Hill  Mine,  3  C.A.R.  i,  31  (1909). 

*  Ibid.,  32  ;  Shearers,  5  C.A.R.  48,  73  (1911)  ;  Ship's  Officers, 
6  C.A,R.  6,  21  (1912), 


8  A  NEW  PROVINCE 

endanger  industrial  peace  in  order  to  keep  unprofit- 
able mines  going.  ^ 

g.  The  Court  does  not  increase  the  minimum  on 
the  ground  of  affluence  of  the  employer.  It  is  not 
affected  by  the  fact  that  one  of  the  employers  can, 
by  skilful  management,  by  enterprise,  or  by  good 
fortune,  make  very  large  profits.^ 

10.  The  minimum  rate  must  be  based  on  the  highest 
function  that  the  employee  may  be  called  on  to 
exercise.  The  employer  must  not  give  a  plumber 
labourer's  work  and  pay  him  labourer's  wages  if  he 
has  also  to  do  plumbing.^ 

11.  In  finding  the  proper  minimum  rate,  the  Court 
tries  to  find  what  would  be  proper  for  an  employee 
of  average  capacity  called  upon  to  do  work  of  the 
class  required.  If  the  employer  desires  to  secure 
the  services  of  an  exceptional  workman,  he  is  free  to 
do  so.  The  payment  of  higher  rates  is  left  to  the 
play  of  bargaining.* 

12.  The  Court  does  not  attempt  to  discriminate 
in  wages  on  the  ground  of  comparative  laborious- 
ness.  Discrimination  on  such  a  ground  is  neither 
safe  nor  sound.  The  Court  declined  to  give  an 
extra  rate  to  hodmen  if  they  carry  beyond  a  certain 
height." 

13.  The  Court  will  not  discriminate  in  wages  as 
between  the  several  States  so  as  to  interfere  with  the 

^  Broken  Hill  Mine,  supra,  33-34  ;  Engine-drivers,  7  C.A.R. 
132,  139  (1913). 

2  Seamen,  5  C.A.R.  147,  164  (191 1)  ;  Gas  Employees,  7  C.A.R. 
58,  72  (1913). 

3  Postal  Electricians,  7  C.A.R.  5,  8-9  (1913). 

*  Ship's  Stewards,  4  C.A.R.  61,  63,  68  (1910) ;  Engine- 
drivers,  5  C.A.R.  9,  15(1911) ;  Shearers,  5  C.A.R.  48,  91  (1911) ; 
Builders'  Labourers,  7  C.A.R.  210,  223  (1913). 

*•  Ibid.,  231. 


FOR  LAW  AND  ORDER  9 

freedom  of  trade  between  the  States  provided  by  the 
Constitution.^ 

14.  The  Court  will  not  keep  down  wages  on 
steamers  so  as  to  enable  them  to  beat  State  railways 
in  competition  or  to  help  one  competitor  against 
another.^ 

15.  The  Court  accepts  and  follows  the  usual 
practice  of  making  rates  for  casual  employment 
higher  than  the  corresponding  rates  for  continuous 
employment.^ 

16.  The  Court,  in  obedience  to  the  Act,  provides 
exceptions  to  the  minimum  rate  in  the  case  of  aged, 
slow,  or  infirm  workers,  but  the  exceptional  cases 
must  be  disclosed  to  the  representative  of  the  union, 
and  be  well  safeguarded.^ 

17.  But  the  Court  will  not  provide  exceptions  to 
the  minimum  rate  for  **  improvers,"  men  paid  more 
than  boys  and  less  than  journeymen,  men  who  are 
used  to  beat  down  the  claims  of  competent  journey- 
men, and  are  thus  a  perpetual  menace  to  the  peace 
of  the  community.^ 

18.  The  Court  regards  the  old  system  of  apprentice- 
ship as  unsuitable  for  factories  under  modern  con- 
ditions, and  it  objects  to  fixing  a  rigid  proportion  of 
apprentices  to  journeymen  without  regard  to  the 
circumstances — e.g.,  the  character  of  the  output  of 
each  factory.  But  if  conditions  of  apprenticeship 
are  in  dispute,  the  Court  will,  especially  if  both  sides 
wish  it,  and  for  the  sake  of  peace  as  well  as  efficiency, 
make  regulations  on  the  subject.    The  proper  method, 

1  Constitution,  Sec.  92  ;  Boot-factories,  4  C. A. R.  i,  13  (1910). 

3  Ship's  Officers,  6  C.A.R.  6,  22  (1912). 

3  Builders'  Labourers,  7  C.A.R.  210,  218  (1913). 

*  Act,  Sec.  40  ;  Boot-factories,  4  C.A.R.  i,  24  (1910). 

5  Boot-factories,  4  C.A.R.,  i,  16  (1910). 


10  A  NEW  PROVINCE 

however,  seems  to  be,  in  boot-factories,  to  co-ordinate 
the  work  of  the  factories  with  the  work  of  the 
technical  schools.^ 

19.  The  Court  will  not  prescribe  extra  wages  to 
compensate  for  unnecessary  risks  to  the  life  or  health 
of  the  employee  or  unnecessary  dirt.  No  employer 
is  entitled  to  purchase  by  wages  the  right  to  endanger 
life  or  to  treat  men  as  pigs.^ 

20.  The  Court  gives  weight  to  existing  conventions, 
usages,  prejudices,  exceptional  obligations  and  ex- 
penses of  the  employees ;  for  instance,  that  masters 
and  officers  are  required  to  keep  up  a  certain  appear- 
ance, and  that  stewards  must  provide  themselves  with 
uniform  and  laundry.^ 

21.  Where  it  is  established  that  there  is  a  marked 
difference  in  the  cost  of  living  between  one  locality 
and  another,  the  difference  will,  so  far  as  possible,  be 
reflected  in  the  minimum  wage.** 

22.  But  where,  as  in  the  case  of  the  wharf  labourers 
at  ports,  all  the  employees  and  nearly  all  the  employers 
desired  that  there  should  be  no  differentiation,  the 
Court  bases  the  minimum  wage  on  the  mean  Aus- 
tralian cost  of  living.^ 

23.  In  cases  such  as  that  of  ship's  stewards,  where 
the  employees  usually  receive  from  passengers  "tips" 
(or  "bunce"),  the  average  amount  of  the  tips  must 

*  Boot-factories,  4  C.A.R.  19,  20  (1910). 

2  Ship's  Cooks,  2  C.A.R.  55,  59,60  (1908)  ;  Seamen,  5  C.A.R. 
147,  164(1911). 

3  Ship's  Officers,  4  C.A.R.  89,  93,  95  (1910)  ;  Ship's  Stewards, 
4C.A.R.  61,  66  (1910). 

*  Broken  Hill  Mine,  3  C.A.R.  i,  28-30  (1909) ;  Engine- 
drivers,  5  C.A.R.  9,  23  (191 1)  ;  7  C.A.R.  132,  141  (1913) ;  Fruit- 
growers, 6  C.A.R.  61,  69  (1912)  ;  Gas  Employees,  7  C.A.R.  58, 
70-74  (1913)  ;  Builders'  Labourers,  7  C.A.R.  210,  221  (1913). 

5  Wharf  Labourers,  8  C.A.R.  (1914). 


FOR  LAW  AND  ORDER  ii 

be  taken  into  account  in  finding  whether  the  employee 
receives  a  living  wage.  But  the  minimum  wage  will 
be  raised  to  its  proper  level  if  the  practice  of  tipping 
can  be  stopped.^ 

24.  In  cases  where  employees  are  ''  kept,"  found 
in  food  and  shelter  by  the  employer,  the  value  of  the 
"  keep  "  is  allowed  in  reduction  of  the  wages  awarded. 
At  a  time  when  the  keep  of  single  men,  such  as 
labourers,  cost  in  lodgings,  usually  15s.  per  week,  the 
Court  reduced  the  wages  by  los.  only.  For  the  15s. 
at  the  family  home  would  go  further  than  it  would 
go  for  board  and  lodging  outside  the  home ;  and  the 
emplo3^er  who  feeds  a  large  number  of  men  can  buy 
the  necessary  commodities  in  large  quantities  and  on 
advantageous  terms.  The  los.  per  week  seemed  to 
represent  fairly  the  amount  of  expenditure  of  which 
the  home  was  relieved  by  the  absence  of  the  man.^ 

25.  The  principle  of  the  living  wage  has  been 
applied  to  women,  but  with  a  difference,  as  women 
are  not  usually  legally  responsible  for  the  maintenance 
of  a  family.  A  woman's  minimum  is  based  on  the 
average  cost  of  her  own  living  to  one  who  supports 
herself  by  her  own  exertions.  A  woman  or  girl  with 
a  comfortable  home  cannot  be  left  to  underbid  in 
wages  other  women  or  girls  who  are  less  fortunate.^ 

26.  But  in  an  occupation  in  which  men  as  well  as 
women  are  employed,  the  minimum  is  based  on  a 
man's  cost  of  living.  If  the  occupation  is  that  of  a 
blacksmith,  the  minimum  is  a  man's  minimum  ;  if 
the  occupation  is  that  of  a  milliner,  the  minimum  is 

^  Ship's  Stewards,  4  C.A.R.  61,  64  (1910). 
'^  Ship's  Cooks,  2  C.A.R.  55,  62"  (1908)  ;  Ship's  Stewards,  4 
C.A.R.  61,  63(1910). 
3  Fruit-growers,  6  C.A.R.  61,  71  (1912). 


12  A  NEW  PROVINCE 

a  woman's  minimum ;  if  the  occupation  is  that  of 
fruit-picking,  as  both  men  and  women  are  employed, 
the  minimum  must  be  a  man's  minimum.^ 

27.  As  regards  hours  of  work,  when  disputed,  the 
Court  usually  adheres  to  the  general  Australian 
standard  of  48  hours ;  generally  8f  hours  on  five  days, 
4I  hours  on  Saturday.  But  in  exceptional  cases  the 
Court  has  reduced  the  hours ;  in  one  case  because  of 
the  nerve-racking  character  of  the  occupation  f  in 
another  case,  that  of  builders'  labourers,  because  the 
men  have  to  "  follow  their  job,"  spending  much  of 
their  own  time  in  travelling.^ 

28.  The  Court  has  conceded  the  eight  hours'  day, 
at  sea  as  well  as  in  port,  to  deckhands  on  ships  ;^  to 
officers  on  ships,^  to  marine  engineers.®  But  there 
are  sundry  necessary  exceptions,  and  the  Master 
retains  the  absolute  right  to  call  on  any  man  in 
emergencies  involving  the  safety  of  the  ship  ;  and  for 
other  purposes  he  may  call  on  any  man,  paying  extra 
rates  for  the  overtime.  The  hours  of  navigating 
officers  were  sometimes  shocking,  and  involved  danger 
to  ship,  cargo,  and  passengers.'^ 

29.  In  certain  exceptional  cases  the  Court  has 
granted  a  right  to  leave  of  absence  for  two  or  three 
weeks  on  full  pay  to  employees  after  a  certain  length 
of  continuous  service ;  not,  of  course,  to  casual  or 
temporary  employees.^ 

^  Fruit-growers,  6  C.A.R.,  72. 

2  Postal  Electricians,  7  C.A.R.  5,  15-16  (1913). 

3  Builders'  Labourers,  7  C.A.R.  210,  228-9  (^Q^S)- 
*  Seamen,  5  C.A.R.  147,  159,  160  (1911). 

5  Ship's  Officers,  4  C.A.R.  89,  99  (1910). 

®  Marine  Engineers,  6  C.A.R.  95,  107  (1912). 

7  Ship's  Officers,  6  C.A.R.  6,  16,  17  (1912). 

8  Ibid.,  15,  25  ;  7  C.A.R.  92,  104  (1913) ;  Postal  Electricians, 
7  C.A.R.  5,  17  (1913). 


FOR  LAW  AND  ORDER  13 

30.  The  Court  refuses  to  dictate  to  employers  what 
work  they  should  carry  on,  or  how;  or  what 
functionaries  they  should  employ,  or  what  functions 
for  each  employee ;  or  what  tests  should  be  applied 
to  candidates  for  employment.^ 

31.  The  Court  leaves  every  employer  free  to  carry 
on  the  business  on  his  own  system,  so  long  as  he 
does  not  perpetuate  industrial  trouble  or  endanger 
industrial  peace;  free  to  choose  his  employees  on 
their  merits  and  according  to  his  exigencies ;  free  to 
make  use  of  new  machines,  of  improved  methods,  of 
financial  advantages,  of  advantages  of  locality,  of 
superior  knowledge ;  free  to  put  the  utmost  pressure 
on  anything  and  everything  except  human  life.^ 

32.  As  regards  complaints  of  disagreeable  or 
onerous  conditions,  the  Court  treats  as  fundamental 
the  consideration  that  the  work  of  the  ship,  factory, 
mine,  etc.,  must  be  done,  a  consideration  next  in 
order  to  that  of  the  essential  needs  of  human  life. 
An  order  will  not  be  made  that  is  inconsistent  with 
the  effective  management  of  the  undertaking.^ 

33.  On  the  same  principle  the  Court  steadily  refuses 
to  make  orders  which  would  militate  against  the 
public  interest  or  convenience.  It  has  refused  to 
order  prohibitive  overtime  rates  for  leaving  port  on 
Sundays;*  it  has  refused  to  forbid  the  employment 
of  casuals  or  to  forbid  **  broken  time  "  in  tramway 
services.     Casuals  or  **  broken  time,"   or  both,  are 

1  Broken  Hill  Mine,  3  CA.R,  i,  36  (1909);  Postal  Elec- 
tricians, 7  CA.R,  5,  7,  8,  13,  18,  19  (1913). 

2  Boot-factories,  4  CA.R.  i,  18  (1910) ;  Shearers,  5  CA.R. 
48,  100  (1911)  ;  Fruit-growers,  6  CA.R.  61,  75  (1912) ;  Gas 
Employees,  7  CA.R.  58,  77  (1913). 

3  Ship's  Stewards,  4  CA.R.  61,  73  (1910)  ;  Ship's  Officers;  4 
CA.R.  89,  loi  (1910). 

*  Seamen,  5  CA.R.  147,  160  (191 1). 


14  A  NEW  PROVINCE 

necessary  to  meet  the  extra  traffic  at  certain  times  of 
the  day.^ 

These  are  some  of  the  principles  of  action  adopted 
by  the  Court.  But,  it  may  be  asked,  what  about 
piecework  ?  How  does  the  Court  fix  piecework  rates  ? 
The -first  great  case  in  which  piecework  rates  were 
directly  involved  was  that  of  the  shearers,^  At  the 
time  of  the  arbitration,  wool  furnished  nearly  40  per 
cent,  of  the  exports  of  Australia,  nearly  £29,000,000 
per  annum,  in  addition  to  the  wool  used  in  Australia. 
In  that  case  the  Court  prescribed  the  piecework  rates 
on  a  time-work  basis — found  the  piecework  rates 
which  would  enable  an  average  shearer  to  earn  such 
wages  per  week  as  would  be^  the  just  minimum  for  a 
man  with  the  qualifications  of  a  shearer  if  he  were 
paid  by  time.  Having  found  that  the  shearer  should, 
as  a  **  skilled  "  worker,  get  a  net  wage  of  £^  per  week 
for  the  time  of  his  expedition  to  the  sheep  stations  to 
shear,  and  having  found  that  a  rate  of  24s.  per  100 
sheep  would  give  this  net  result,  the  Court  fixed  24s. 
per  100  as  the  minimum  rate.^  In  finding  the  net 
returns  of  the  whole  expedition,  allowances  had  to 
be  made  for  days  of  travelling  and  waiting,  expenses 
en  route,  cost  of  mess  and  combs  and  cutters."*  This 
system  of  finding  the  net  result  of  the  expedition,  and 
what  would  be  a  fair  return  for  the  expedition,  was 
also  adopted  in  the  case  of  persons  employed  by  fruit- 
growers on  the  River  Murray.^  Sometimes  the  Court 
protects  piece-workers  in  making  their  bargain  by 
prescribing  that  their  remuneration  shall  not  fall 
below,  in  result,  a  certain  timework  minimum.® 

^  Tramways,  6  C.A.R.  130,  144  (1912). 

2  5C.A.R.  48  (191 1). 

3  Ibid.,  73,  79.  *  5  C.A.R.  74,  76. 

^  Fruit-growers,  6  C.A.R.  61,  68  (1912).  "  Ibid.,  75. 


FOR  LAW  AND  ORDER  15 

The  sy^stem  of  arbitration  adopted  by  the  Act  is 
based  on  unionism.  Indeed,  without  unions,  it  is  hard 
^  conceive  how  arbitration  could  be  worked.  It  is 
tru^ttrar'fhSTS'-^Te'-mefhods  provided  by  which  the 
Court  can  intervene  for  the  preservation  of  industrial 
peace  even  when  its  powers  are  not  invoked  by  any 
union ;  but  no  party  can  file  a  plaint  for  the  settle- 
ment of  a  dispute  except  an  **  organization,"  that  is 
to  say,  a  union  of  employers  or  of  employees  regis- 
tered under  the  Act.^  One  of  the  "  chief  objects  "  of 
the  Act,  as  stated  in  Sec.  2,  is  "  to  facilitate  and  en- 
courage the  organization  of  representative  bodies  of 
employers  and  of  employees  and  the  submission  of 
industrial  disputes  to  the  Court  by  organizations  "; 
and  it  follows  that  the  Court  will  not  assist  an  em- 
ployer in  devices  to  stamp  out  unionism.'-^  It  is,  of 
course,  better  for  an  employer  that  he  should  not  be 
worried  by  complaints  of  individual  employees  and 
that  any  complaints  should  be  presented  collectively 
by  some  responsible  union.  He  has  then  the  advan- 
tage of  being  able  to  deal  with  his  employees  on  a 
consistent  scheme,  equitable  all  round  the  service, 
and  his  time  is  not  taken  up  by  petty  complaints  or 
individual  fads.  A  demand  made  on  him  comes  from 
a  responsible  executive,  with  the  consent,  direct  or 
indirect,  of  the  organized  body  of  members  of  the 
union.  Moreover,  from  the  point  of  view  of  the 
employees,  it  is  better  that  an  individual  employee 
should  not,  by  complaining,  incur  the  risk  of  becom- 
ing a  marked  man  or  of  being  removed,  and  the 
individual  employee  is  generally  powerless.  From 
the  point  of  view  of  the  Court  and  of  the  public,  it  is 
fair  to  state  that  in  nearly  every  case — I  can  only 

^  Sec.  19.  2  Tramways,  6  C.A.R.  130,  143  (1912). 


i6  A  NEW  PROVINCE 

remember  one  case  to  the  contrary — the  influence  of 
union  leaders  has  always  been  in  the  direction  of 
peace.  It  would  not  be  so,  probably,  if  there  were 
no  means  of  obtaining  an  improvement  of  conditions 
except  by  strike,  actual  or  threatened,  but  in  Australia 
the  leaders  can  hold  out  to  the  members  of  the  union 
a  prospect  of  relief  without  strike,  from  the  Court  or 
from  some  wages  board.^  It  is  significant  that  in  the 
one  exceptional  case  referred  to,  the  leaders  of  the 
union  have  been  converted,  so  that  they  are  now 
strong  advocates  of  arbitration. 

But  then  comes  the  difficult  question  of  **  prefer- 
ence to  unionists."  Preference  to  unionists  is  the 
Australian  analogue  of  the  "preferential  union  shop  " 
made  familiar  in  some  of  the  garment  industries  of 
the  United  States.  The  Act  gives  the  Court  power 
to  direct  that  as  between  members  of  organizations 
(unions)  of  employees  and  other  persons  desiring 
employment  at  the  same  time  preference  shall  be 
given  to  such  members,  other  things  being  equal.^ 
But  it  is  only  a  power,  not  a  duty,  to  order  such 
preference ;  and  the  Court  is  very  loth  to  exercise  the 
power.  "  The  absolute  power  of  choice  (between 
applicants  for  employment)  is  one  of  the  recom- 
mendations of  the  minimum  wage  system,  from  the 
employer's  point  of  view — he  can  select  the  best  men 
available  when  he  has  to  pay  a  certain  rate."^  For 
this  reason  preference  was  refused  in  the  case  of 
shearers,  etc.;*  in  the  case  of  seamen  f  in  the  case  of 
builders'  labourers.®     Yet  the  Court  recognizes  the 

*  Marine  Engineers,  6  C.A.R.  95,  100  (191 2).         2  gee.  40. 

3  Engine-drivers,  5  C.A.R.  9,  25  (191 1)  ;  7  C.A.R.  132,  147 
(1913)  ;  Tramways,  6  C.A.R.  35,  47  (1912). 

*  5  C.A.R.  48,  99  (191 1).  s  5  C.A.R.  147,  170  (191 1). 
«  7  C.A.R.  210,  233  (1913). 


FOR  LAW  AND  ORDER  17 

difficulty   of  the   position.      As    was    said    in    the 
builders'  labourers  case  : 

"The  truth  is,  preference  is  sought  for  unionists 
in   order  to  prevent  preference  of  non-unionists  or 
anti-unionists — to  prevent  the  gradual  bleeding  of 
unionism  by  the  feeding  of  non-unionism.     It  is  a 
weapon  of  defence.      For  instance,  some  employers 
here  hired  men  through  the  Independent  Workers' 
Federation — a  body  supported  chiefly  by  employers' 
money,  and  devised  to  frustrate  the  ordinary  unions ; 
and  those  who  applied  for  work  at  the  office  of  this 
body  would  not  be  introduced  to  the  employer  unless 
they  ceased  to  be  members  of  the  ordinary  unions 
and  became  members  of  this  body.     What  is  to  be 
done  to  protect  men  in  the  exercise  of  their  right  as 
free  men  to  combine  for  their  mutual  benefit,  seeing 
that  the  employing  class  has  the  tremendous  power 
of  giving  or  withholding  work  ?     The  only  remedy 
that  the  Act  provides  is  an  order  for  preference ;  and 
it  is  doubtful  whether  such  an  order  is  appropriate  or 
effective.     It  is,  indeed,  very  trying  for  men  who  pay 
full  dues  to  a  legitimate  union  to  work  side  by  side 
with  men  who  do  not — with  men  who  look  to  their 
own  interests  only,  seeking  to  curry  favour  with  the 
employers,  getting  the  benefit  of  any  general  rise  in 
wages  or  betterment  of  conditions  which  is  secured 
without  their  aid  and  in  the  teeth  of  their  opposition, 
men  who  are  preferred  (other  things  being  equal)  for 
vacancies  and  promotion.    Every  fair  man  recognizes 
the  difficulty  of  the  position — every  man  who  is  not 
too  much  of  a  partisan  to  look  sometimes  at  the  other 
side  of  the  edge.    In  another  case  recently  before  me, 
a  non-unionist  told  me  that  he  acted  solely  on  the 
basis  of  his  personal  interest,  without  any  regard  for 


i8  A  NEW  PROVINCE 

the  interests  of  his  fellow-workers.  He  looked  for 
favours  to  himself,  because  he  kept  away  from  those 
who  combined  for  the  common  good  of  the  whole 
body.  It  is  not  out  of  consideration  for  such  men 
that  I  refuse  preference ;  it  is  rather  out  of  considera- 
tion for  such  employers  as  honestly  take  the  best  man 
available,  unionist  or  not.  I  do  not  want  them  to  be 
harassed  with  the  doubt,  when  selecting  men  for  a 
post,  whether  they  can  prove  their  appointee  to  be 
better  than  all  the  unionist  applicants.  I  refuse 
preference  also  out  of  consideration  for  many  who 
have  not  joined  any  union  simply  because  they  have 
not  felt  the  need.  In  the  case  of  country  building 
work,  for  instance,  it  is  common  for  men  on  farms, 
etc.,  when  farm  work  is  not  pressing,  to  take  a  job 
as  builders'  labourer.  Why  should  the  employer  be 
compelled  to  bring  union  labourers  from  the  city  ? 
After  all,  the  direct  way  for  unionists  to  counteract 
unfair  preference  of  non-unionists  is  for  the  unionists 
to  excel — to  give  to  the  employer  the  best  service.  It 
is  nearly  always  found  that  employers  prefer  a  first- 
class  man  who  is  unionist  to  a  second-class  man  who 
is  non-unionist."^ 

The  only  case  in  which  the  Court  has  ordered 
preference  is  the  case  of  a  tramway  company  which 
deliberately  discriminated  against  unionists  and  re- 
fused to  undertake  not  to  discriminate  in  future.^  It 
is  to  be  observed  that  the  Court  is  not  given  power 
by  the  Act  to  order  that  the  employer  shall  not  dis- 
criminate against  unionists  in  giving  or  withholding 
employment. 

The  imposition  of  a  minimum  wage,  a  wage  below 

^  7  C.A.R.  2IO,  233-4  (1913). 

2  Tramways,  6  C.A.R.  130,  162  (1912). 


FOR  LAW  AND  ORDER  19 

which  an  employer  must  not   go   in   employing   a 
worker  of  a  given  character  implies,  of   course,  an 
admission  of  the  truth  of  the  doctrine  of  modern 
economists,  of  all  schools  I  think,  that  freedom  of 
contract  is  a  misnomer  as  applied  to  the  contract 
between  an  employer  and  an  ordinary  individual  em- 
ployee.    The  strategic  position  of  the  employer  in  a 
contest  as  to  wages  is  much  stronger  than  that  of  the 
individual  employee.      "  The  power  of  the  employer 
to  withhold  bread  is  a  much  more  effective  weapon 
than  the  power  of  the  employee  to  refuse  to  labour."^ 
Low  wages  are  bad  in  the   worker's  eyes,  but  un- 
employment, with  starvation  in  the  background,  is 
worse.     The  position  was  put  luminously  once,   as 
well  as  with  unconscious  humour,  by  an  employer  on 
whom  a  plaint  was  served  for  settlement  of  a  dispute 
by  the  Court.     In  place  of  filing  an  answer  he  wrote 
a  letter  to  the  registrar,  denying  that  he  was  a  party 
to  any  dispute.    "  I  have  never,"  said  he,  "  quarrelled 
or  disputed  with  a  labourer  of  any  kind.  ...     If  we 
cannot  agree,  well,  we  will  part ;  that  ends  the  whole  .  .  . 
Love  is  the  power  which  will  end  all  struggles,  not 
legislation."      Other  respondents  pin  their  faith,  not 
to  *'  love,"  but  to  the  sterner  "  law   of   supply  and 
demand."      They   treat   this   law   as   being,  in   the 
matter  of  wages,  more  inexorable  and  inevitable  than 
even  the  law  of  gravitation,  as  not  being  subject,  as 
laws  of  nature  are,  to  counteraction,  to  control,  to 
direction.  "  One  may  dam  up  a  river,  or  even  change 
its  course ;    but  one  cannot  (it  is  said)  raise  wages 
above  the  level  of  its  unregulated  price,  above  the 
level  of  a  sum  which  a  man  will  accept  rather  than  be 

^  Engine-drivers,  5  C.A.R.  9,  27  (1911). 


20  A  NEW  PROVINCE 

starved."  1  If  the  Court  did  nothing  else  than  drag 
such  theories  into  the  hght  of  day,  and  into  free  dis- 
cussion, it  would  be  doing  good  service  to  the  com- 
munity. But  it  is  coming  to  be  recognized  that  what 
the  Court  does  in  fixing  a  minimum  wage  is  by  no 
means  novel  in  principle.  There  are  many  Acts  of 
many  Legislatures  which  prescribe  minimum  condi- 
tions on  other  subjects.  For  example,  Mining  Acts 
often  prescribe  minimum  conditions  as  to  ventilation, 
timbering,  safety  appliances,  machinery,  sanitation. 
These  matters  are  not  left  to  individual  bargaining. 

There  are  no  definite  figures  with  regard  to  the  cost 
to  the  parties  of  arbitration  proceedings,  but  the  cost 
is  very  slight.  There  are  seldom  any  costs  incurred 
in  employing  lawyers,  for,  under  Sec.  27  of  the  Act, 
lawyers  cannot  be  employed  except  with  the  consent 
of  both  parties,  and  the  employees  generally  refuse 
their  consent.  The  secretary  of  the  organization 
generally  puts  its  case,  and  the  employers  or  some 
permanent  officer  generally  put  the  employers'  case. 
The  principal  expense  of  an  arbitration  is  that  of 
bringing  witnesses.  If  prohibition  proceedings  are 
taken  in  the  High  Court  to  prevent  the  enforcement 
of  an  award  on  the  ground  that  the  Court  of  Concilia- 
tion has  exceeded  its  jurisdiction  (of  which  I  shall 
say  more  presently),  no  doubt  heavy,  very  heavy, 
expenses  are  incurred,  but  these  are  not  expenses  of 
the  arbitration. 

But  it  has  to  be  admitted  that  proceedings  in  the 
Court  of  Conciliation  often  take  a  very  long  time, 
sometimes  weeks,  in  a  few  cases  months.  The  pro- 
ceedings cannot  be  otherwise  than  lengthy,  as  the 

1  Engine-drivers,  5  C.A.R.  27,  28  (191 1);  Ship's  Officers,  6 
C.A.R.  6,  18  (1912) ;  Marine  Engineers,  6  C.A.R.  95,  loi  (1912). 


FOR  LAW  AND  ORDER  21 

disputes  of  which  the  Court  can  take  cognizance  are 
so  widespread — must  extend  from  one  State  into  one 
or  more  other  States.  Moreover,  the  habit  is  to  bring 
before  the  employers,  and  afterwards  before  the 
Court,  a  very  long  list  of  conditions  in  dispute,  and 
the  case  of  each  employer  has  to  be  fairly  considered 
by  the  Court  in  connection  with  each  grievance.  The 
number  of  employers  respondents  to  a  plaint  is 
generally  great.  There  were  311  employers  in  the 
Engine-drivers'  case  ;^  570  in  the  case  of  the  Builders' 
labourers,^  650  in  that  of  the  Fruit-growers  f  and 
2,549  3.t  least  in  that  of  the  Shearers.^  The  Court  has 
no  power  to  make  an  award  a  common  rule  of  the 
industry ;  it  cannot  investigate  and  settle  the  proper 
conditions  to  be  applied  in  one  typical  undertaking 
and  then  extend  the  same  conditions  to  other  under- 
takings of  the  same  character.  The  act  purported  to 
give  this  power  to  the  Court,  but  it  was  held  by  the 
High  Court,  on  a  case  stated,  that  the  Act  was  in  this 
respect  unconstitutional  and  invalid.^  This  want  of 
power  to  make  a  common  rule  for  the  industry  not 
only  lengthens  the  proceedings,  but  it  also  may 
operate  to  the  prejudice  of  the  employers  who  are 
bound  by  the  award.  For  the  Court  can  deal  only 
with  employers  who  employ  members  of  the  union. 
Some  rival  employers  may  have  no  members  of  the 
union  in  their  employment  and  therefore  have  to  be 
excluded  from  the  award.  Their  hands  are  free  as 
to  wages,  while  the  hands  of  the  others  are  fettered, 
and  this  is,  of  course,  unfair  as  between  competitors 

1  7  C.A.R.  132  (1913).  2  7  c.A.R.  210  (1913). 

3  6  C.A.R.  61,  65  (1912). 

*  5  C.A.R.  48,  65(1911). 

^  Boot-factories,  11  C.L.R.  311  (1910). 


22  A  NEW  PROVINCE 

in  the  trade.  In  one  case,  that  of  the  boot  factories/ 
the  difficulty  was  met  by  the  employers  and  em- 
ployees concurring  in  an  application  before  the  wages 
boards  of  each  of  the  States  concerned  to  have  the 
terms  of  the  award  made  a  common  rule  for  the  State. 
But  this  remedy  is  not  always  available. 

There  is  a  provision  in  the  Act^  enabling  the  Court 
to  appoint  a  board  of  reference,  assigning  to  it  the 
function  of  determining  specified  matters  which  under 
the  award  may  require  to  be  determined.  Such  a 
provision,  if  properly  drafted  and  valid,  would  be  of 
eminent  service  to  peace.  Difficulties  often  arise 
under  an  award,  owing  to  the  vast  variety  of  methods 
in  the  different  undertakings,  as  to  the  application  of 
the  words  of  the  award  to  some  particular  case. 
These  and  other  difficulties  ought  to  be  met  by 
collective  adjustment,  between  representatives  of  the 
employers  on  the  one  side,  and  the  representatives 
of  the  union  on  the  other,  with  a  neutral  chairman ; 
but  from  the  nature  of  the  case  there  would  have  to 
be  a  separate  board  in  each  of  the  centres  of  the 
industry.  Nothing  would  tend  more  to  prevent  serious 
friction  and  to  promote  a  mutual  understanding  of 
employers  and  employees.  **  A  suitable  Board  of 
Reference  under  the  aegis  of  a  strong  union,  is  a 
safety-valve  for  any  industry."^  But,  unfortunately, 
as  the  section  stands,  with  the  interpretation  put 
upon  it  by  the  High  Court,  it  is  practically  useless. 
The  parties  on  both  sides  of  a  dispute  often  seek  a 
board,  or  rather  boards,  of  reference,^  but  the  Court 
cannot  generally  help  them.     Sometimes,  however, 

^  4  C.A.R.  I  (1910)  ;  Builders'  Labourers,  7  C.A.R.  210,  235 

(1913)- 
^  Sec.  40  a.        ^  Engine-drivers,  7  C.A.R.  132,  144  (1913). 
*  Seamen,  6  C.A.R.  59  (1912). 


FOR  LAW  AND  ORDER  23 

the  parties  to  the  dispute  make  and  file  agreements 
between  the  union  and  the  several  employers  for  a 
board  and  leave  the  Court  to  award  on  the  other 
subjects  in  dispute ;  and  the  agreements  are  certified 
by  the  Court,  and  on  being  filed  under  Sec.  24  have 
the  same  binding  effect  as  an  award.^ 

There  are  two  important  powers  of  which  the 
Court  has  frequently  availed  itself,  or  threatened  to 
avail  itself,  with  very  excellent  effect.^  These  are : 
{a)  the  power  to  withhold  an  award  if  it  appear  "that 
further  proceedings  by  the  Court  are  not  desirable  in 
the  public  interest  ;"^  and  (6)  the  power  to  vary  an 
award.^  Sometimes  the  employees,  though  seeking 
an  award,  have  taken  up  an  obstinate  attitude,  inti- 
mating in  effect  that  if  the  award  does  not  meet  their 
wishes  they  will  not  abide  by  it ;  and  the  Court  has 
plainly  intimated  that  it  will  not  proceed  with  the 
arbitration  on  such  terms.^  It  cannot  be  for  the 
public  interest  to  proceed  with  the  arbitration  under 
such  a  constraint.  Arbitration  by  the  Court  is  meant 
to  be  a  substitute  for  the  method  of  strike,  and  "  you 
cannot  have  award  and  strike  too."®  In  one  case, 
while  the  Court  was  preparing  an  award  for  seamen 
and  firemen,  information  came  that  the  firemen  of 
the  s.s.  Koombana  refused  to  work  on  the  ship  unless 
a  certain  chief  steward  were  removed.  The  position 
was  serious;  the  ship  carried  the  mails,  as  well  as 
passengers  and  cargo,  for  ports  on  the  West  Austra- 
lian coast.     There  was  an  agreement  in   existence 

^  Engine-drivers,  7  C.A.R.  132,  135  (1913). 

2  Fruit-growers,  6  C.A.R.  61,  78  (1912). 

3  Sec.  38  h.  *  Sec.  38  0. 

.  ^  Gas  Employees,  7  C.A.R.  58, 62  (1913)  ;  Broken  Hill  Mine, 
3  C.A.R.  I,  20  (1909). 

«  Liquoi-  Trade,  7  C.A.R.  255  (1913). 


24  A  NEW  PROVINCE 

under  which  it  was  a  breach  of  agreement  on  the 
part  of  the  union  if  by  reason  of  any  dispute  a  vessel 
were  detained  twenty-four  hours.  The  Court  inti- 
mated that  it  would  not  make  its  award  so  long  as 
the  agreement  was  not  observed.  As  a  result,  officials 
of  the  union  conducted  suitable  firemen  to  the  port 
where  the  vessel  lay,  put  them  on  board,  and  the 
Koombana  went  on  her  way ;  then,  and  not  till  then, 
the  Court  gave  its  award.^ 

The  power  to  vary  an  award  has  also  been  held 
over  the  head  of  a  recalcitrant  union.  It^  is  not  fair 
to  keep  the  employers  bound  by  the  award  if  the 
union  takes  the  benefit  of  the  award  and  rejects  th6 
burden.  The  Court  has  power  to  lower  or  annul  the 
minimum  wage  in  such  a  case  if  necessary.^  For- 
tunately it  never  has  been  necessary.  I  may  give 
one  case  in  point.  The  wharf  labourers  were  on 
strike  in  Brisbane;  seamen  who  were  enjoying  the 
benefit  of  an  award  were  ordered  to  unload  their 
vessel.  They  were  naturally  indisposed  to  comply, 
but,  before  refusing,  they  telegraphed  to  the  Execu- 
tive of  their  union  for  directions.  They  were  told 
by  the  Executive  to  unload  or  they  would  lose  the 
award.    They  unloaded. 

Another  very  valuable  power  is  that  conferred  by 
Parliament  in  1910,  under  which  the  President  may, 
when  a  dispute  exists  or  is  threatened,  summon  any 
person  to  attend  a  conference  in  his  presence.  The 
attendance  is  compulsory,  enforcible  by  penalty.^ 
Frequently  a  quiet  talk  at  such  a  conference  has 
prevented   a    strike   which    was    imminent.^     Fre- 

^  Seamen,  5  C.A.R.  147,  173-4  (1911)- 
2  Fruit-growers,  6  C.A.R.  61,  78  (191 2).  ^  Sec,  16  a. 

*  Seamen,  4  C.A.R.  108  (1910)  ;  5  C.A.R.  147,  154  (1911)  ; 
Fruit-growers,  5  C.A.R.  37,  183  (1911);  6  C.A.R.  61, 62  {1912)  ; 


FOR  LAW  AND  ORDER  25 

quently  the  parties  arrange  to  proceed  for  arbitration 
and  make  temporary  arrangements  for  carrying  on 
work  until  tiie  award.^  Sometimes  an  actual  strike 
confined  to  one  State,  though  the  dispute  extended 
to  two  States,  has  been  stopped,  the  men  going  back 
to  work  at  the  old  rates  until  the  award.'^  A  further 
amendment  was  made  in  the  Act  in  1911,  under 
which,  if  no  agreement  has  been  reached  at  the  con- 
ference, the  President  can  refer  the  dispute  into  the 
Court  for  arbitration.^  The  fact  that  this  whip  is  in 
the  hands  of  the  President,  to  be  used  in  the  last 
resort,  and  that  the  party  with  the  stronger  position 
for  the  time  being  will  have  to  submit  to  an  award  if 
he  takes  up  an  obstinate  attitude  against  all  agree- 
ment, is  found  to  operate  as  a  strong  inducement  to 
compromise  and  to  reasonable  arrangements  by  con- 
sent. Arrangements  in  lieu  of  award  have  often  been 
fixed  up  in  a  conference  or  as  the  result  of  a  confer- 
ence.'* The  agreements  are  generally  produced  in 
Court  when  the  case  is  called  on,  and  the  President 
certifies  to  them,  and  has  them  filed,  and  they  operate, 
are  enforcible,  as  an  award.^  In  one  long  case,  where 
the  Court  was  faced  with  a  dispute  in  ten  tramway 
undertakings,  no  less  than  eight  of  the  undertakings 
arranged  agreements  during  the  course  of  the  long 

Steamboat  Engine-men,  6  C.A.R.  60  (1912)  ;  Bakers,  7  C.A.R. 
257-8  (1913). 

^  Export  Butchers,  4  C.A.R.  82,  87  (1910)  ;  Glass  Bottle 
Makers,  6  C. A. R.  176(1912);  Steamboat  Engine-men,  7  C.A.R. 
37  (1913) ;  Bakers,  7  C.A.R.  257-8  (1913). 

2  Export  Butchers,  7  C.A.R.  52-54  (1913).  ^  Sec.  19  d. 

*  Engine-drivers,  6  C.A.R.  126  (1912)  ;  Glass  Bottle  Makers, 
6  C.A.R.  176(1912);  7  C.A.R.  43  (1913) ;  Seamen  (as  to  man- 
ning), 7  C.A.R.  2  (1913)  ;  Journahsts,  7  C.A.R.  112,  113  (1913)  ; 
Liquor-trade,  6  C.A.R.  129  (1912)  ;  7  C.A.R.  254  (1913). 

^  Sec.  24. 


26  A  NEW  PROVINCE 

hearing,  with  the  assistance  of  the  President  given  in 
frequent  interviews  with  the  parties  in  chambers.^ 

It  must  not  be  supposed  that  the  desire  for  the 
assistance  of  the  President  or  of  the  Court  is  confined 
to  employees.  At  first  there  was  a  tendency  on  the 
part  of  employers,  individually  and  in  association,  to 
resent  interference,  as  preventing  the  employers  from 
carrying  on,  as  they  said,  their  own  business  in  their 
own  way.  But  the  facts  have  been  too  strong  for 
them.  Employers  now  frequently  request  the  Presi- 
dent to  intervene  and  to  summon  a  conference  in 
order  to  prevent  a  stoppage  of  work.2  They  seek 
regulation,  by  agreement  or  award,  in  order  that  they 
may  not  find  their  plant  lying  idle  and  their  business 
at  a  standstill,  and,  in  some  cases,  a  season  lost. 

Perhaps  it  will  be  well  to  give  a  concrete  case. 
There  is,  in  Victoria,  a  great  butchering  trade  in 
lambs  for  export,  involving,  I  believe,  more  than  a 
million  pounds  per  annum.  The  lambs  are  sent 
down  to  Melbourne  in  the  spring,  September,  or 
October ;  and  unless  they  are  butchered  at  once  they 
deteriorate  in  condition  and  the  season  is  lost.  The 
men  suddenly  refused  to  go  to  work  at  the  old  rates ; 
telegrams  flew  up  to  the  country  settlements  to  stop 
trucking  any  more  lambs  ;  the  settlers  were  faced 
with  the  prospect  of  losing  their  market,  and  the 
storekeeping  and  incidental  industries  with  the  pros- 
pect of  grievous  loss.  It  so  happened  that  the  same 
demand   was   made   on    employers   in    New   South 

^  Tramways,  6  C.A.R.  130,  140  (1912)  ;  and  see  Journalists, 
7  C.A.R.  112,  113  (1913). 

2  Seamen,  4  C.A.R.  108  (1910) ;  5  C.A.R.  147,  154(1911)  ; 
Fruit-growers,  5  C.A.R.  37  (1911);  Waterside  Workers,  6 
C.A.R.  3  (1912) ;  Glass  Bottle  Makers,  6  C.A.R.  176  (1912)  ; 
Liquor  Trade,  7  C.A.R.  254(1913)  ;  Export  Butchers,  5  C.A.R. 
52  (1913) ;  Victorian  Stevedoring  Co.,  5  C.A.R.  i  (191 1). 


FOR  LAW  AND  ORDER  27 

Wales,  so  that  there  seemed  to  be  a  two-State  dis- 
pute which  gave  jurisdiction  to  the  President.  A 
conference  was  summoned  at  the  request  of  the  em- 
ployers, the  men  induced  to  go  to  work  under  the 
conditions  already  in  operation  on  a  promise  that  the 
Court  would  arbitrate  and  make  the  award  retrospec- 
tive to  the  resumption  of  work,  and  the  season  was 
saved.'  The  parties  prepared  themselves  peacefully 
to  discuss  their  differences  before  thejCourtiJ),ut-3- 
this  is  the  point — the  work  went  on. 

Another  concrete  case,  showing  the  desire  of  both 
sides  for  definite  regulation  of  conditions  by  the 
Court,  is  that  of  the  ship's  officers.  The  men,  in 
their  demands,  had  been  too  specific ;  the  High 
Court  had  decided  that  the  dispute  must  be  treated 
as  confined  to  the  specific  demands  made,  and  that 
the  Court  of  Conciliation  could  not  prescribe  a 
remedy  for  any  grievance  different  from  that  remedy 
demanded.  The  Court  of  Conciliation  found  that 
the  granting  of  the  demands,  as  asked,  would  tend  to 
promote  strife  rather  than  peace  in  the  industry,  and 
stated  its  difficulties  to  the  parties.  Both  parties 
were  so  anxious  for  a  definite  arrangement  of  condi- 
tions that  they  consented  to  embody  in  an  agreement 
any  terms  whatever  that  the  President  thought  proper, 
whatever  the  ambit  of  the  dispute,  whatever  the 
jurisdiction  of  the  Court.  The  President  accordingly 
continued  the  hearing  of  the  case  and  drew  up  an 
agreement  which  both  parties  signed  and  which  they 
have  both  loyally  observed.^ 

There  is  such  a  strong  desire  for  the  assistance  of 
the  machinery  of  the  Act  that  on  several  occasions 

1  Export  Butchers,  7  C.A.R.  52,  54  (1913). 

2  Ship's  Officers,  4  C.A.R.  89,  91  (1910). 


28  A  NEW  PROVINCE 

an  attempt  has  been  made  by  the  employers,  with  or 
without  the  concurrence  of  employees,  to  induce  the 
President  to  intervene  in  cases  in  which  he  has  had 
to  refuse  his  assistance,  on  the  ground  that  the  dis- 
pute does  not  extend  beyond  one  State  and  must  be 
dealt  with,  if  at  all,  by  State  authorities.^  Quite 
recently  the  President  has  had,  however,  to  make  an 
exception  to  his  rule  not  to  meddle,  even  by  consent, 
with  matters  outside  his  jurisdiction.  There  was 
a  dispute  between  labourers  and  artisans  on  the  one 
side  and  the  Commonwealth  Government  on  the 
other,  as  to  conditions  of  labour  in  the  construc- 
tion of  a  naval  base  in  Western  Port,  Victoria ;  all 
parties  signed  a  submission  to  arbitration,  leaving 
everything  to  the  determination  of  the  President  as 
in  a  voluntary  arbitration.  In  view  of  the  serious 
effects  of  a  stoppage  of  the  works  in  time  of  war,  the 
President  consented  to  act,  heard  the  parties,  and 
gave  an  award,  and  the  parties  are  peacefully  acting 
in  accordance  with  it.^ 

But  the  course  of  the  Court,  like  the  course  of  true 
love,  does  not  always  run  smooth.  It  has  to  meet 
some  bitter  opposition.  Sometimes  the  opposition 
comes  from  a  union  of  employees — generally,  a  union 
which  avowedly  accepts  the  doctrine  of  the  "  class 
war,"  and  aims  at  "  the  emancipation  of  labour  by 
the  abolition  of  the  wage  system."^  I  have  even 
seen  a  cartoon,  in  a  labour  newspaper,  showing  a 
labourer  walking  towards  a  gate  marked  "  Freedom," 
and  a  bull-dog  with  a  collar  marked  "Arbitration" 

^  Victorian  Stevedoring  Co.,  5  C.A.R.  i  (191 1) ;  Hairdressers, 
6  C.A.R,  I  (1912). 

2  Naval  base — not  reported. 

3  Fruit-growers,  6  C.A.R.  61,  65,  78  (191 2). 


FOR  LAW  AND  ORDER 


29 


bars  his  path.  It  is  but  fair  to  say  that  this  cartoon 
appeared  in  a  State  which  has  a  local  Arbitration 
Court.  But  the  attacks  on  the  Court  and  its  awards 
are,  of  course,  generally  made  from  the  side  of  em- 
ployers, many  of  whom  naturally  resent  any  curtail- 
ment of  their  powers.  The  applications  for  prohibi- 
tion against  the  President  have  been  sometimes  in 
part  or  temporarily  successful.  Prohibition  is  applied 
for  because  of  some  alleged  excess  of  the  Court's 
jurisdiction,  and  the  argument  generally  turns  on  the 
question,  was  there  a  dispute,  and  if  there  was,  did  it 
extend  beyond  one  State  ?  Sometimes  the  argument 
turns  on  the  validity  of  some  section  of  the  Act.  The 
proceedings  are  very  long  and  very  costly,  and  it  is 
astonishing  what  a  wealth  of  learning  is  involved  in 
the  meaning  of  the  word  "  dispute  "  and  the  words 
**  extending  beyond  the  limit  of  any  one  State."  The 
discussions  occupy  a  very  considerable  proportion  of 
the  Commonwealth  Law  Reports,  but  they  would 
not  interest  those  for  whose  information  I  write  this 
article.  The  legal  discussions  do  not  affect  the  prin- 
ciples or  methods  of  action  of  the  Court  of  Concilia- 
tion in  cases  where  there  is  jurisdiction. 

It  has  to  be  admitted  that  the  awards,  in  nearly 
all  cases,  have  been  made  in  a  period  when  the  cost 
of  living  is  rising  and  that  therefore  they  have  gener- 
ally increased  the  existing  minimum  rate.  The  Court 
found,  about  igii,  that  the  cost  of  living  was  sub- 
stantially increasing,  but  it  refused  to  raise  the  basic 
wage  until  the  increase  could  be  quantitatively  stated.^ 
It  suggested  the  expediency  of  official  statistics  on 
the  subject,  and  the  Commonwealth  Statistician  now 
furnishes  periodically  statistics  which  have  materially 
1  Engine-drivers,  5  C.A.R.  g,  14,  16  (1911). 


30  A  NEW  PROVINCE 

assisted  the  Court.  According  to  the  Commonwealth 
Statistician,  the  cost  of  living,  taking  Australia  as  a 
whole,  has  increased  by  25  per  cent,  from  1901  to 
1913.  For  such  necessaries  as  could  be  bought  in 
1901  for  £1,  one  must  now  pay  253.^  What  will 
happen  if  the  cost  of  living  should  decrease — if  the 
minimum  for  the  basic  or  living  wage  shall  have  to 
be  lowered  ?  It  is  a  fair  question,  but  it  is  for  the 
future  to  give  the  answer.  I  wish  to  confine  my 
words  to  my  personal  experience.  Yet  there  have 
been  cases  in  which  the  Court  has  refused  increases 
or  has  actually  decreased  the  minimum  rates,  and  the 
employees  have  listened  to  the  reasons  and  loyally 
submitted.  In  the  case  of  the  shearers,^  the  rates  for 
shearing,  24s.  per  100,  as  fixed  by  my  predecessor, 
were  not  increased ;  and  the  strongest  union  in  Aus- 
tralia, the  Australian  Workers'  Union,  acquiesced. 
In  the  same  case,  the  Court  found  that  too  high 
minimum  rates  had  previously  been  fixed  for  wool- 
pressers  and  lowered  them,  stating  its  reasons.  There 
was  no  strike,  no  refusal  to  work,  no  expression,  that 
I  know,  of  discontent.  In  the  case  of  the  builders' 
labourers,^  the  Court  fixed  lower  rates  for  Ballarat 
and  Bendigo  than  for  Melbourne,  and  lower  rates  for 
Melbourne  than  for  Sydney,  all  because  of  differences 
in  the  cost  of  living.  The  union  leaders  were 
troubled  because  those  cities  had  always  maintained 
the  same  "  union  rate  "  ;  but  they  told  the  members 
of  the  union  the  Court's  reasons,  and  there  was 
peace.  Again,  in  the  same  case,  the  Court  fixed  for 
Melbourne  a  lower  minimum  rate  for  scaffolders  and 

^  Postal  Electricians,  7  C.A.R.  5,  12  (1913). 

2  Shearers,  5  C.A.R.  48  (191 1). 

3  Builders'  Labourers,  7  C.A.R.  210  (1913). 


FOR  LAW  AND  ORDER  31 

demolishers  than  had  been  previously  fixed  by  the 
wages  board — is.  3|d.  per  hour  instead  of  is.  4|d. 
per  hour ;  and  the  men  submitted.  The  truth  is,  I 
think,  that  if  the  men  secure  the  essentials  of  food, 
shelter,  clothing,  etc.,  they  are  not  so  unreasonable 
as  is  sometimes  supposed.  They  do  not  love  strikes 
for  the  sake  of  strikes ;  and  the  great  majority  are 
generally  quite  willing  to  submit  to  reason  if  they 
feel  that  they  are  reasonably  treated. 

This  article  is  confined,  as  I  stated  at  the  beginning, 
to  the  Federal  Court  of  Conciliation  and  to  my  own 
actual  experience  in  connection  therewith.  But 
American  readers  should  know  that  in  each  of  the 
six  Australian  States  there  is  some  wages  board 
system  under  the  State  law  or  some  Industrial  or 
Arbitration  Court.  Victoria  was  the  first  State  to 
adopt  a  system  of  wages  boards,  about  i8g6;  and  her 
example  has  been  more  or  less  followed  in  Queensland, 
South  Australia,  and  Tasmania.  Western  Australia 
has  an  Arbitration  Court,  and  New  South  Wales  has 
a  combination  of  the  two  systems,  wages  boards  and 
an  Industrial  Court.  There  is  no  organic  connection 
between  the  State  systems  and  the  Federal  system. 
The  object  of  the  wages  boards  is  primarily  to  prevent 
sweating  or  under-payment ;  the  object  of  the  Federal 
Court  is  to  preserve  or  restore  industrial  peace.  The 
Federal  Court  deals  with  disputes,  as  such,  and  pre- 
scribes wages,  etc.,  merely  as  incidental  to  the  pre- 
vention or  settlement  of  disputes;  the  wages  board 
prescribes  minimum  wages  and  has  no  direct  relation 
to  disputes.  But,  as  is  obvious  from  the  nature  of 
the  case,  the  systems  often  overlap.  A  wages  board 
consists,  generally,  of  representatives  selected  by 
employers  and  of    representatives  selected  by  em- 


32  A  NEW  PROVINCE 

ployees  in  equal  numbers,  with  a  neutral  chairman. 
There  is  not,  I  think,"any  fixed  principle  stated  by 
the  Legislatures  for  the  guidance  of  the  boards  in 
prescribing  the  minimum  wage.  At  one  time,  the 
Victorian  Legislature  enacted  that  the  minimum 
wage  should  not  exceed  the  wage  paid  by  "  reputable 
employers ";  but  this  negative  provision  has  been 
found  unsuitable,  and  repealed.  The  wages  boards 
cannot  deal  with  all  industrial  conditions ;  the  Federal 
Court  can  deal  with  any  industrial  condition  that 
comes  into  dispute.  The  wages  boards  do  not  publish 
the  reasons  for  their  determinations;  the  Federal 
Court  does.  As  a  result  I  find  that  the  wages  boards 
frequently  look  for  guidance  in  their  action  to  the 
reasoning  of  the  Federal  Court.  The  wages  boards, 
within  the  limits  of  area  assigned  to  them,  bind  all 
employers  by  their  determinations ;  the  Federal  Court 
can  only  bind  those  who  are  concerned  in  the  dispute. 
The  wages  boards,  being  State  creations,  are  very 
much  affected  by  the  consideration  of  inter-State 
competition.^  In  dealing  with  boot-factories,  the 
New  South  Wales  Tribunal  would  have  fixed  the 
minimum  for  journeymen  at  gs.  per  day,  but  for  the 
fact  that  the  rival  factories  of  Victoria  had  a  minimum 
of  8s.  per  day.  The  Federal  Court,  when  asked  to 
intervene,  was  able,  as  an  Australian  tribunal,  to  bind 
the  employers  of  both  States  to  pay  the  gs.  per  day.^ 
Another  weakness  in  the  wages  board  system  is  that 
employees,  in  the  presence  of  an  employer  or  a  pos- 
sible employer,  have  not  the  independent  position 
which  would  enable  them  to  act  fearlessly.  This  is 
especially  the  case  where,  as  in  the  case  of  city  tram- 

^  Engine-drivers,  5  C.A.R.  9,  17  (1911). 
2  Boot-factories,  4  C.A.R,  i,  8  (1910). 


FOR  LAW  AND  ORDER  33 

ways,  there  is  only  one  undertaking  where  a  tramway 
man  can  get  employment.  In  the  case  of  the  Brisbane 
tramways  it  appeared  that  it  was  the  manager  who, 
as  a  member  of  the  wages  board,  made  all  the  pro- 
posals, and  that  every  one  of  his  proposals  was  carried 
unanimously.^  Again,  the  decision  of  the  wages  board 
of  one  State  is  frequently  inconsistent  with  the  decision 
of  the  wages  board  of  an  adjoining  State.  There  is 
no  one  final  co-ordinating  authority  as  in  the  case  of 
the  Federal  Court,  and  the  result  is  often  that  con- 
trasts appear,  and  dissatisfaction  arises,  and  industrial 
trouble.  For  instance,  a  large  mining  district,  of 
essentially  the  same  physical  and  industrial  character, 
with  the  same  cost  of  living,  is  divided  by  the  artificial 
boundary  line  between  two  States.  The  wages  board 
of  one  State  prescribed  one  set  of  wages  and  con- 
ditions, the  wages  board  of  the  other  State  prescribed 
a  lower  set.  The  consequences  were  disastrous.^  A 
New  South  Wales  wages  board  gave  in  the  case  of 
builders'  labourers,^  the  lowest  rate  to  scaffolders, 
and  the  highest  to  hodmen.  The  Victorian  wages 
board  gave  the  highest  rate  to  scaffolders.  The  New 
South  Wales  board  gave  a  low  rate  to  demolishers ; 
the  Victorian  board  gave  the  highest  rate.  The 
Federal  Court,  when  it  came  to  act,  prescribed  a  flat 
minimum  rate  for  all  the  labourers,  and  the  employees 
were  satisfied.  They  knew  that  a  man  of  exceptional 
value  as  a  scaffolder  or  in  any  other  capacity  would 
still  be  able  to  demand  and  obtain  a  rate  higher  than 
the  minimum.  It  is  often  said  that  the  minimum 
rate  tends  to  become  the  maximum,  but  there  has 

^  Tramways,  6  C.A.R.  130,  149  (1912). 

*  Engine-drivers,  7  C.A.R.  132,  145  (1913). 

3  Builders'  Labourers,  7  C.A.R.  210(1913). 

3 


34  A  NEW  PROVINCE 

been  no  proof  of  such  tendency  as  yet.  Moreover, 
the  wages  boards  are  often  not  suitably  grouped,  and 
there  is  a  tendency  to  ignore  the  interests  of  un- 
represented minorities,  of  employers  as  well  as  of  em- 
ployees. For  example,  there  was  in  Victoria  a  "  hay, 
chaff,  wood,  and  coal  board,"  composed,  as  to  em- 
ployers, of  ordinary  wood,  coal,  and  produce  retailers. 
They  managed  to  get  a  determination  which  kept 
their  own  yardmen  at  low  wages,  but  fixed  a  dispro- 
portionately large  minimum  for  yardmen  who  handled 
coke,  because  the  Gas  Company  of  the  city  was 
practically  the  only  vendor  of  coke  and  it  was  not 
represented  on  the  board. ^  But  most  of  these  defects, 
and  other  defects  which  I  could  point  out,  are  not  of 
the  essence  of  the  system  and  will  probably  be 
removed  or  obviated  in  the  light  of  experience. 
Employers  have  assured  me  that  they  welcome  the 
fixing  of  minimum  rates  by  the  boards  or  by  the 
Court.  They  know  now  definitely  what  they  must 
pay,  and,  so  long  as  they  pay  it,  they  feel  no  more 
the  incessant  nagging  of  unions  or  employees  as  to 
wages.  -Nor  can  any  impartial  person  deny  the  im- 
mense relief  which  the  system  of  wages  boards  has 
afforded  to  thousands  of  the  most  helpless  families 
throughout  Australia.  Wages  boards  constitute  one 
of  the  most  useful  factors  of  those  which  tend,  in  the 
words  of  Russell  Lowell,  to  "  lift  up  the  manhood  of 
the  poor  "  and  to  provide  proper  sustenance  and  up- 
bringing for  the  children  of  the  nation. 

Perhaps  I  should  add  here  that  up  to  the  present 

I  have  not  been  able  to  trace  any  increase  of  price  of 

commodities  to  the  fixing  of  minimum  wages.     It  is 

not  the  function  of  the  Court  to  ascertain  the  truth 

1  Gas  Employees,  7  C.A.R.  58,  65  (1913). 


FOR  LAW  AND  ORDER  35 

as  to  the  causes  of  increased  prices,  but  the  Cour 
watches  for  any  sidelights  on  this  important  subject. 
In  one  case,  I  believe,  a  wages  board  raised  the  wages 
of  milk  carters  by  is.  per  day  and  the  milk  vendors 
at  once  raised  the  price  of  milk  by  id.  per  quart- 
For  100  quarts  per  day,  this  would  mean  an  increase 
of  receipts  to  the  amount  of  8s.  4d.  per  day,  so  that 
the  milk  vendors  had  raised  the  price  of  milk  far 
beyond  the  amount  necessary  to  recoup  them  for  the 
additional  wages. 

It  will  be  asked,  however,  what  is  the  net  result  of 
the  Court  of  Conciliation  ?  Have  strikes  ceased  in 
Australia  ?  The  answer  must  be  that  they  have  not. 
There  have  been  numerous  strikes  in  Australia,  as 
elsewhere.  But  since  the  Act  came  into  operation 
there  has  been  no  strike  extending  "  beyond  the  limits 
of  any  one  State."  Those  who  are  old  enough  to 
recall  the  terrible  shearers'  strike  and  seamen's  strike 
of  the  *'  nineties,"  with  their  attendant  losses  and 
privations,  turbulence,  and  violence,  will  realize  how 
much  ground  has  been  gained.  The  strikes  which 
still  occur  are  strikes  within  a  single  State,  and  dis- 
putes within  a  single  State  are  outside  the  jurisdiction 
of  the  Court.  It  can  be  safely  said  that,  since  the 
Act,  every  dispute  **  extending  beyond  the  limits  of  any 
one  State"  comes  before  the  Court  or  the  President, 
either  on  the  application  of  parties  to  the  dispute,  or 
on  the  initiative  of  the  officers  of  the  Court.'-  More- 
over, with  the  exception  of  one  doubtful  case,  in 
which  I  was  not  personally  concerned  and  do  not 
know  the  full  particulars,  there  has  been  no  instance 
of  an  award  being  flouted  by  the  employees,  no 
instance  of  the  employees  refusing  to  work  under  an 
*  Sec.  19. 


36  A  NEW  PROVINCE 

award.  There  have  been  cases  in  which  parties  have 
differed  in  the  interpretation  of  an  award  in  its 
application  to  exceptional  circumstances ;  there  have 
been  instances  of  inadvertent  disobedience;  and  these 
cases  have  sometimes  come  to  the  courts  in  the  form 
of  an  action  for  a  penalty.  But  these  were  cases  in 
which  the  award  was  treated  as  regulating  the  rights 
of  the  parties,  not  treated  as  a  thing  to  be  rejected. 

In  191 1  Parliament  entrusted  to  the  Court  another 
formidable  function,  the  settling  of  wages,  hours, 
and  conditions  of  labour  for  Federal  public  servants. 
This  function  does  not  rest  on  the  constitutional 
power  to  make  laws  for  conciliation  and  arbitration 
in  industrial  disputes;-^  it  rests  on  the  absolute 
power  of  the  Commonwealth  in  relation  to  its  own 
servants.  The  public  servants  are  allowed  to  group 
themselves  in  unions,  "  organizations,"  as  they  think 
fit,  and  to  approach  the  Court  with  a  plaint.  It 
seems  at  first  sight  curious  that  Parliament  should 
entrust  any  tribunal  with  a  power  of  adjudicating  on 
such  subjects,  but  Parliament  has  been  careful  to 
retain  the  final  control  of  the  Commonwealth 
finances.  For  the  award  does  not  come  into  opera- 
tion till  the  expiration  of  thirty  days  after  it  has  been 
laid  before  both  Houses,  and  Parliament  can,  if  it 
sees  fit,  pass  a  resolution  disapproving  of  the  award. 
This  remarkable  jurisdiction  over  public  servants 
deserves  a  study  all  to  itself,  and  I  can  only  say, 
though  there  have  been  several  important  awards 
under  it,  no  award  has  yet  met  with  the  disapproba- 
tion of  Parliament  and  no  resolution  of  disapproval 
has  ever  been  tabled. 

In  conclusion,  I  may  state  that  I  am  not  unaware 
1  Sec.  51  (XXXV.). 


FOR  LAW  AND  ORDER  37 

of  the  far-reaching  schemes,  much  discussed  every- 
where, which  contemplate  conditions  of  society  in 
which  the  adjustment  of  labour  conditions  between 
profit-makers  and  wage-earners  may  become  un- 
necessary. Our  Australian  Court  has  nothing  to  do 
with  these  schemes.  It  has  to  shape  its  conclusions 
on  the  solid  anvil  of  existing  industrial  facts,  in  the 
fulfilment  of  definite  official  responsibilities.  It  has 
the  advantage,  as  well  as  the  disadvantage,  of  being 
limited  in  its  powers  and  its  objects.  Its  objective 
is  industrial  peace,  as  between  those  who  do  the  work 
and  those  who  direct  it.  It  has  no  duty,  it  has  no 
right,  to  favour  or  to  condemn  any  theories  of  social 
reconstruction.  It  neither  hinders  nor  helps  them. 
But  it  is  obvious  that  even  if  all  industries  were  to 
be  carried  on  under  State  direction,  industrial  peace 
would  be  as  vitally  important  as  it  is  now,  and  that 
it  could  not  be  secured  without  recognition  of  the 
principle  which  the  Court  has  adopted,  that  each 
worker  must  have,  at  the  least,  his  essential  human 
needs  satisfied,  and  that  among  the  human  needs 
there  must  be  included  the  needs  of  the  family. 
Sobriety,  health,  efficiency,  the  proper  rearing  of  the 
young,  morality,  humanity,  all  depend  greatly  on 
family  life,  and  family  life  cannot  be  maintained 
without  suitable  economic  conditions.  The  reason- 
ing which  has  lately  committed  to  the  Court  the 
function  of  settling  conditions  of  labour  for  public 
servants  would  not  be  less,  would  be  even  more 
applicable,  if  the  State  had  more  servants  than  it  has. 
Yet,  though  the  functions  of  the  Court  are  definite 
and  limited,  there  is  opened  up  for  idealists  a  very 
wide  horizon,  with,  perhaps,  something  of  the  glow 
of  a  sunrise.     Men  accept  the  doom,  the  blessing  of 

<"  A  *l  *«  r\ 

X)  0  <j  ^  y 


38  A  NEW  PROVINCE 

work:  they  do  not  dispute  the  necessity  of  the 
struggle  with  Nature  for  existence.  They  are  wilHng 
enough  to  work,  but  even  good  work  does  not  neces- 
sarily insure  a  proper  human  subsistence,  and  when 
they  protest  against  this  condition  of  things  they  are 
told  that  their  aims  are  too  "materialistic."  Give 
them  relief  from  their  materialistic  anxiety;  give 
them  reasonable  certainty  that  their  essential  material 
needs  will  be  met  by  honest  work,  and  you  release 
infinite  stores  of  human  energy  for  higher  efforts, 
for  nobler  ideals,  when 

"  Body  gets  its  sop,  and  holds  its  noise,  and  leaves  soul  free  a 
little." 


FOR  LAW  AND  ORDER  39 


CHAPTER  II. 

An  Article  contributed  to  the  Harvard  Law 
Review,  published  January,  1919. 

Under  this  name  there  appeared  in  this  review  in 
November,  1915,  an  article  written  by  me  at  the 
instance  of  the  editor.  It  gives  in  a  summary  form 
the  results  of  my  experience  as  President  of  the 
Australian  Court  of  Conciliation  and  Arbitration. 
As  the  article  seems  to  have  attracted  some  atten- 
tion in  America,  and  also  in  Great  Britain  and 
Australia,  it  may  not  be  amiss  to  report  progress  after 
three  more  years ;  especially  now  that  a  national 
labour  administration  has  been  created  in  the 
United  States  in  the  charge  of  my  friend  Professor 
Frankfurter. 

This  Court  has  not  to  deal  with  mere  theories.  It 
does  not  work  in  the  air — in  the  cloud-cuckoo  town 
of  Aristophanes.  As  I  said  iij  1915,  the  Court  "has  to 
shape  its  conclusions  on  the  solid  anvil  of  existing 
industrial  facts,  in  the  fulfilment  of  definite  official 
responsibilities.  It  has  the  advantage  as  well  as  the 
disadvantage  of  being  limited  in  its  powers  and  its 
objects." 

I  propose  to  make  this  article  supplementary  to  the 
former.  I  have  found  that  in  Great  Britain  as  well 
as  in  America  the  idea  of  compulsory  arbitration  is 
repugnant  to  the  leaders  of  the  working  class, 
whereas  in  Australia,  facing  different  stars,  the 
opposition    comes    principally    from    the    class    of 


40  A  NEW  PROVINCE 

employers.  In  the  earlier  years  of  my  work  I 
received  through  the  post  many  insulting  anony- 
mous letters,  most  of  which  I  have  kept  as  curiosi- 
ties, and  nearly  all  these  letters  came  from  partisans 
of  the  employers.  The  party  with  a  stronger 
economic  position  naturally  wants  to  be  free  to  act 
as  it  thinks  fit ;  it  objects  to  be  bound  by  orders  from 
outside.  The  Act  makes  it  the  first  duty  of  the  Court, 
to  endeavour  to  get  agreement  on  the  matters  in 
dispute  and  to  exercise  its  compulsory  powers  only 
when  an  agreement  is  impossible;  but  when  the 
party  with  a  stronger  economic  position  refuses  to 
agree  on  lines  of  justice  instead  of  economic  strength 
the  Court  has  to  interfere  by  dictating  terms  such  as 
would,  in  its  opinion,  be  just  in  a  collective  agree- 
ment. The  ideal  of  the  Court  is  a  collective  agree- 
ment settled,  not  by  the  measurement  of  economic 
resource,  but  on  lines  of  fair  play.  The  stronger 
economic  position  is  usually  held,  of  course,  by  the 
party  which  has  the  right  to  give  or  withhold  work 
and  wages,  the  means  of  livelihood.  It  is  usually 
held  by  the  employers.  This  is  the  reason  why  the 
awards  necessarily  operate  more  frequently  as  a 
restraint  upon  employers  than  as  a  restraint  on 
employees. 

I  desire  to  deal  in  particular  with  the  constructive 
part  of  the  work  of  the  Court.  The  awards  have  to 
be  framed  on  some  definite  system,  otherwise  in 
getting  rid  of  one  trouble  you  create  many  others. 
Some  years  ago  a  friend,  who  had  had  on  one  or 
two  occasions  the  function  of  reconciling  parties  to 
industrial  troubles,  told  me  that  he  had  found  it  best 
to  put  the  leaders  into  a  good  humour  by  getting 
them   to   dine   together  with   him   and   to   have   a 


FOR  LAW  AND  ORDER  41 

friendly  chat.  A  veteran  leader  of  the  shearers  has 
written  a  book,  in  which,  with  much  naivete,  he 
recommends  in  the  first  place  that  leaders  of  workers 
in  conferences  with  employers  should  first  adduce 
the  solid  arguments,  and  then  in  the  last  resort  make 
a  powerful  appeal  on  behalf  of  the  women  and 
children — "give  them  the  women  and  children  hot." 
Neither  of  these  courses  is  permissible  for  the  Court 
which  has  to  deal,  not  with  single  isolated  disputes, 
but  with  a  series  of  disputes.  The  awards  must  be 
consistent  one  with  the  other,  or  else  comparisons 
breed  unnecessary  restlessness,  discontent,  industrial 
trouble.  The  advantages  of  system  and  consistency 
in  the  awards  are  increasingly  apparent,  as  parties, 
knowing  the  lines  on  which  the  Court  acts  and 
understanding  its  practice,  often  now  make  agree- 
ments in  settlement  of  a  dispute  in  whole  or  in  part 
without  evidence  or  argument.^  The  agreement,  if 
certified  by  the  President  and  filed  in  the  Court,  is 
deemed  to  be  an  award.     (Sec.  24.) 

In  the  previous  article  I  have  set  forth  a  goodly 
number  of  propositions  laid  down  by  the  Court,  and 
on  looking  through  them  I  cannot  find  that  any  of 
them  have  been  overruled  or  set  aside.  They  have 
been  amplified  and  applied  to  varying  circumstances, 
and  new  propositions  have  been  added.  The  claims 
for  the  assistance  of  the  Court  have  been  so  numerous 
that  my  colleagues  of  the  High  Court  have  come  to 
my  assistance,  and  in  particular  Mr.  Justice  Powers, 
acting  as  Deputy  President.  Although  Mr.  Justice 
Powers  has  had  an  absolutely  free  hand  in  dealing 
with  the  disputes  which  he  undertakes,  I  do  not  think 

^  Cf.  Engine-drivers,  8  C.A.R.  206;  Tramways  Employees 
9  C.A.R.  208  ;  Marine  Stewards,  10  C.A.R.  539. 


42  A  NEW  PROVINCE 

that  in  any  essential  or  substantial  point  he  has  seen 
fit  to  reject  any  of  the  propositions ;  but  as  I  must 
take  the  sole  responsibility  for  any  statements  made 
in  this  article  I  confine  myself  to  a  review  of  the 
position  as  it  stands  under  my  awards. 

Minimum  Wage. 

The  Court  adheres  to  its  practice  of  dividing  the 
minimum  wage  awarded  into  two  parts — the  "  basic 
wage  " — the  minimum  to  be  awarded  to  unskilled 
labourers  on  the  basis  of  "  the  normal  needs  of  an 
average  employee  regarded  as  a  human  being  living 
in  a  civilized  community;"  and  the  other,  the 
"secondary  wage" — the  extra  payment  to  be  made 
for  trained  skill  or  other  exceptional  qualities  neces- 
sary for  an  employee  exercising  the  functions  required. 

A  curious  controversy  arose  in  1915  as  to  the  effect 
of  awarding  a  minimum  rate.  The  Act  allows  the 
Court  (Sec.  40)  to  prescribe  a  minimum  rate,  but 
does  not  mention  a  maximum  rate,  and  one  would 
have  thought  it  sufficiently  obvious  that  there  is  no 
breach  of  an  award  on  the  part  of  a  worker  if  he 
declined  to  take  employment  at  the  minimum  rate 
prescribed.  The  contrary  view,  however,  has  been 
hotly  urged,  and  some  partisans  of  the  employers, 
newspapers  and  others,  have  gone  so  far  as  to  call  it 
a  "  strike  "  when  men  refused  to  accept  work  which 
is  offered  at  the  minimum  rate.  In  Webster's 
dictionary  "  strike  "  is  defined  as  "  the  act  of  quitting 
work ;  specifically  such  an  act  by  a  body  of  workmen 
done  as  a  means  of  enforcing  compliance  with  their 
demands  made  on  their  employers."  But  our  Act 
is  clear  on  the  subject.  According  to  Section  4, 
"  strike "   includes   the   total   or  partial  cessation  of 


FOR  LAW  AND  ORDER  43 

work  by  employees  acting  in  combination  as  a 
means  of  enforcing  compliance  with  the  demands 
made  by  them  or  other  employees  on  employers. 
The  question  first  arose  in  connection  with  "  special 
cargoes "  in  the  case  of  the  Waterside  Workers 
(called,  I  believe,  in  America,  "longshoremen"). 
These  men  were  casual  labourers  hired  by  the  hour. 
They  turned  up  at  the  wharf  when  a  vessel  arrived 
and  the  foreman  made  his  selection.  The  minimum 
rate  prescribed  was  is.  gd.  per  hour.  The  union  had 
claimed  that  wheat  should  be  treated  as  a  special 
cargo,  so  that  the  wheat-carriers  should  be  entitled 
to  a  minimum  rate  of  2s.  per  hour.  The  Court  had 
refused  this  claim,  as  there  seemed  to  be  no  sufficient 
difference  between  wheat  and  other  commodities  for 
the  purpose  of  a  minimum  rate.  But  it  appeared  that 
certain  members  of  the  union  had  adopted  the 
practice  of  following  the  wheat  ships  from  north  to 
south,  and  having  acquired  a  certain  dexterity  in 
the  handling  of  wheat,  had  succeeded  with  some 
employers  in  enforcing  the  payment  of  2s.  per  hour. 
Under  the  exigencies  of  the  war  the  various  wheat 
States  had  formed  wheat  pools,  and  the  State  Govern- 
ments were  quite  willing  to  pay  the  extra  3d.  per 
hour  in  order  to  get  the  services  of  these  men  in 
loading  the  ships  for  export  to  Great  Britain ;  but 
they  did  not  like  to  pay  the  extra  3d.  in  the  face  of 
the  decision  just  given  by  the  Court.  The  Court 
reassured  the  employers  of  the  wheat  pool  thus  :^ 

"  It  is  not  necessarily  an  unjust  extortion  for  a  man 
or  a  class  of  men  who  make  wheat-carrying  a  speci- 
ality to  demand  more  than  the  minimum  rate  for  his 
or  their  services.     It  is  quite  in  harmony  with  the 
1  Waterside  Workers,  9  C.A.R,  315 ;  10  C.A.R.  i. 


44  A  NEW  PROVINCE 

principle  of  freedom  of  contract  subject  to  the 
minimum  wage  that  an  employer  should  seek  by 
extra  wage  to  attract  men  who,  as  he  thinks,  will 
give  him  extra  speed  and  efficiency.  The'  device  of 
a  minimum  wage  will  soon  prove  to  be  a  bane  instead 
of  a  blessing  if  the  position  be  perverted  as  the  argu- 
ments tend  to  pervert  it.  I  can  only  say  plainly  that 
there  is  no  breach  of  the  award  or  impropriety  in  a 
man  refusing  his  services  in  loading  wheat  unless  the 
employer  pay  him  more  than  the  minimum.  It  is  all 
a  matter  for  contract." 

The  extra  3d.  was  paid.  The  wheat  was  loaded 
and  carried  to  the  Allies,  while  at  the  same  time  no 
obligation  was  imposed  on  all  the  exporters  for  the 
term  of  the  award  to  pay  a  minimum  rate  of  2S. 

The  doctrine,  however,  which  now  appears  to  be  a 
mere  truism,  was  attacked  by  certain  newspapers  and 
employers  in  a  tirade  of  abuse.  The  men,  it  was 
said,  were  actually  encouraged  by  the  Court  to 
"  strike  "  for  higher  wages.  Even  if  the  legal  posi- 
tion were  clear  the  Court  was  not  justified  in  stating 
it,  in  suggesting  higher  demands ;  and  so  forth. 
However,  I  took  the  first  opportunity  of  stating  a 
case  on  the  subject  for  the  opinion  of  the  High 
Court;  and  the  High  Court,  by  a  unanimous 
decision,  upheld  the  doctrine.  * 

It  would,  of  course,  be  an  astounding  position  if, 
while  the  employer  remains  free  to  give  or  to  refuse 
employment  at  the  minimum  rate,  the  employee  were 
bound  to  take  employment  at  that  rate.  The  em- 
ployer has  the  formidable  power  of  refusing  to  give 
work  to  any  particular  man,  the  power  even  to  put 
an  end  to  all  his  own  business  operations;  why 
*  Waterside  Workers,  21  C.A.R,  642. 


FOR  LAW  AND  ORDER  45 

should  not  the  employee  be  free  to  refuse  to  take 
work  ?  A  minimum  rate  is  in  effect  a  restraint  upon 
the  employer ;  a  maximum  rate  would  be  in  effect  a 
restraint  upon  an  employee.  The  Act  gives  power 
to  prescribe  a  minimum  rate,  and  the  object  of  that 
power  would  be  defeated  if  a  man  who  thinks  that 
his  services  are  worth  more  than  the  minimum  rate 
were  not  free  to  hold  out  for  a  higher  rate.  Some 
employers  pay  more  than  the  minimum  for  the 
avowed  purpose  of  attracting  the  best  men.  Inci- 
dentally it  may  be  remarked  that  the  position  as  now 
settled  here  is  very  far  from  justifying  the  fears  of 
those  who  look  on  provisions  for  minimum  rates  as 
tending  to  the  establishment  of  a  "  servile  State." 
Mr.  Belloc's  dogma  C'The  Servile  State,"  p.  172), 
that  "  the  principle  of  a  minimum  wage  involves  as 
its  converse  the  principle  of  compulsory  labour,"  is 
not  confirmed  by  such  experience  as  I  have  had. 

The  statement  has  often  been  made  that  the  mini- 
mum rate  tends  to  become  the  maximum  rate.  I  have 
not  found  it  so.  It  is  quite  true  that  far  more  em- 
ployees get  the  minimum  rate  prescribed  than  got  it 
before  the  rate  was  fixed,  for  before  that  time  they 
usually  got  varying  rates,  mostly  below  the  minimum. 
I  have  not  found  unions  objecting  to  members  taking 
extra  pay  for  extra  usefulness ;  for  instance,  in  build- 
ing operations  an  expert  scaffolder  often  claims,  and 
gets  without  objection,  a  higher  rate  than  the  flat 
minimum  prescribed ;  and  leading  hands  in  a  labour- 
ing process  often  get  higher  rates  than  their  mates  ;^ 
but  unions  object  to  extra  rates  for  extra  servility,  for 
disloyalty  to  one's  comrades. 

^  Broken  Hill,  10  C.A.R.  200-201. 


46  A  NEW  PROVINCE 

Offensive  Jobs,  etc. 

Connected  with  this  doctrine  are  the  propositions 
that  the  Court  does  not  attempt  to  discriminate  in 
minimum  rates  on  the  ground  of  comparative  labori- 
ousness,  and  that  the  Court  will  not  prescribe  an 
extra  minimum  to  compensate  for  unnecessary  risks 
to  the  life  or  health  of  the  employee,  or  for  unneces- 
sary dirt  (propositions  12  and  19  of  the  previous 
chapter).  For  instance,  members  of  the  Amalgamated 
Society  of  Engineers  failed  to  get  an  increase  of  rate 
under  the  name  of  "  dirt  money "  when  handling 
dirty  work.  That  is  to  say,  the  Court  refused  to 
increase  the  minimum  rate  prescribed.^  So,  too,  in 
artificial  manure  works,  the  employees  asked  for  an 
increase  in  the  minimum  rate  because  of  dust  and 
fumes.  It  was  said  that  dust  affected  the  air  passages 
and  produced  catarrh,  etc.;  but  there  was  no  evidence 
to  show  how  far,  if  at  all,  the  dusty  conditions 
operated  to  reduce  the  effective  wages.  The  Court 
was  unable  to  express  the  injury  in  terms  of  money. 
Of  course,  if  the  subject  of  defective  arrangements 
under  which  dust  is  produced  come  before  the  Court 
directly  as  a  grievance  for  regulation,  the  Court 
would  have  to  decide  the  matter  as  best  it  could;  but 
employers  must  not  be  allowed  to  purchase  by  money 
a  right  to  injure  health.  The  same  principles  are 
applied  to  cases  of  excessive  strain  on  employees,  as 
by  excessive  weights  or  excessive  use  of  certain 
muscles  or  injury  to  clothes  : 

*'  This  Court  tends  rather  to  refuse  to  make  dif- 
ferentiation in  minimum  rates  except  for  clearly 
marked  distinctions  and  qualifications  such  as  crafts- 
1  Broken  Hill,  10  C.A.R.  155. 


FOR  LAW  AND  ORDER  47 

men's  skill  or  exceptional  responsibility  or  special 
physical  condition  necessary  for  the  operation.  .  .  . 
Differentiation  in  minimum  rates  prescribed  must  be 
made  on  broad  lines."  ^ 

On  the  same  grounds  the  Court  expressed  dis- 
approval of  the  system  of  extra  minimum  rates  for 
special  cargoes  handled  by  waterside  workers.  When 
one  special  cargo  was  conceded  by  another  tribunal 
there  were  incessant  efforts  to  make  more  cargoes 
special,  until  at  last  the  complaint  was  that  all 
cargoes  should  be  special  except  case  goods.  No 
subject  has  caused  more  incessant  friction.  There 
can  be,  however,  no  objection  to  a  man  refusing  to 
accept  employment  for  a  cargo  which  injures  his 
health  or  is  beyond  his  powers,  or  if  he  think  that  he 
ought  to  get  a  payment  beyond  the  minimum. 
Beyond  the  minimum  there  is  ample  area  for  free 
bargaining. 

Regulation  of  Employer's  Methods. 

But  although  the  Court  does  not  prescribe  a  dif- 
ferential minimum  rate  on  the  ground  that  a  job  is 
offensive  or  distressing,  it  has  sometimes  to  award 
directly  on  the  subject  when  it  is  made  the  ground  of 
a  substantive  dispute.  For  instance,  the  waterside 
workers  complained  that  the  weights  put  upon  them 
to  carry  or  to  wheel  were  too  heavy ;  and  the  Court 
prescribed  a  maximum  of  i  cwt.  for  bagged  ore  to  be 
lifted,  a  maximum  of  5  cwt.  for  one  man  using  a  two- 
wheeled  truck  (the  truck  itself  weighs  2  cwt.),  a 
maximum  of  200  lbs.  for  bagged  cargo  to  be  carried, 
a  maximum  of  15  cwt.  for  two  men  using  a  trolley.^ 

^  Artificial  Manures,  9  C.A.R.  187-189. 
*  Waterside  Workers,  9  C.A.R.  305-309. 


48  A  NEW  PROVINCE 

There  were  certain  exceptions  made.  It  was  recog- 
nized also  that  the  weight  might  vary  with  the 
condition  of  the  wharf  ;  and,  above  all,  there  was  no 
appropriate  scientific  evidence  of  the  kind  that  is 
collected  in  the  excellent  work  of  Miss  Goldmark  on 
"  Fatigue  and  Efficiency."  But  interference  on  such 
subjects  is  rare.  It  is  well  known  that  the  Court  is  very 
chary  about  dictating  to  those  who  have  to  direct  the 
work  as  to  the  mode  of  carrying  it  out  (see  proposi- 
tion 30),  and  that  it  will  not  dictate  conditions  unless 
it  be  clearly  shown  that  the  mode  adopted  involves 
undue  pressure  on  human  life.  The  Court  usually 
refuses  to  prevent  the  employer  from  having  the 
work  done  as  he  thinks  desirable  for  his  undertaking,^ 
or  to  dictate  the  number  of  men  to  be  employed,*  or 
to  alter  the  functions  of  the  respective  officers,^  or  to 
prevent  an  employer  from  calling  on  an  employee  to 
work  extra  hours  if  paid  substantial  extra  rates,*  or 
to  prevent  coastal  vessels  from  being  at  sea  on  Sun- 
days,^ or  to  prescribe  the  number  of  retorts  to  be 
drawn  and  charged  by  a  stoker  in  his  shift,®  or  to 
interfere  with  the  choice  of  men  for  appointment  or 
promotion.  The  Court  does  not  favour  the  arbitrary 
limitation  of  the  proportion  of  boys  to  adults  if  the 
employer  finds  that  boys  will  answer  the  purpose  of 
his  undertaking  as  well  as  men,  and  especially  if  he 
bind  himself  to  teach  the  boys  a  definite  trade.  But 
the  position  is  different  if  the  boys  would  not  be 
employed  for  certain  heavy  or  risky  work  except  for 
their  wages  being  lower — if  the  employer  would  not 

1  Pastoralists,  11  C.A.R. 

2  Marine  Engineers,  10  C.A.R.  528. 

3  Postal  Electricians,  10  C.A.R.  578. 

'*  Merchant  Service  Guild,  10  C.A.R.  673.  '        ^  Ibid.  214. 
^  Gas  Employees,  11  C.A.R. 


FOR  LAW  AND  ORDER  49 

employ  boys  but  for  the  cheaper  rate.^  In  one  case 
the  Court  refused  to  exempt  any  boys  from  the 
minimum  adult  wage  unless  they  were  properly 
apprenticed. 2  Similar  principles  are  applied  in  the 
case  of  women.  If  women  are  put  to  work  more 
suited  for  men,  as  that  of  a  blacksmith,  or  even  to 
work  for  which  men  are  equally  suited,  the  woman 
must  get  a  man's  minimum.^ 

Directors  of  Industry. 

The  Court  does  not  ignore,  however,  the  increasing 
demand  of  employees  for  some  voice  as  to  the 
conditions  of  working,  the  uneasy  feeling  that  the 
employers,  or  rather  their  foremen,  have  an  auto- 
cratic power  which  is  too  absolute.  Wages  and  hours 
are  not  everything.  A  man  wants  to  feel  that  he  is 
not  a  tool,  but  a  human  agent  finding  self-expression 
in  his  work.  The  Court  tries,  therefore,  to  encourage 
by  all  the  means  in  its  power  the  meeting  of  repre- 
sentatives of  the  unions  with  representatives  of  the 
employers.  Such  meetings  produce  a  good  effect,  even 
when  the  employers  adhere  to  their  methods,  giving 
their  reasons.  Fortunately  there  is  no  difficulty 
as  to  recognition  of  the  unions.  The  unions  have 
come,  and  have  come  to  stay.  Our  Act  could  not  be 
worked  without  unions.  One  of  the  chief  objects  of 
the  Act  is,  under  Sec.  2,  "  To  facilitate  and  encourage 
the  organization  of  representative  bodies  of  employers 
and  employees,  and  the  submission  of  industrial  dis- 
putes to  the  Court  by  organizations."  Now  the  Act 
(Sec.  40A)  enables  the  Court  to  appoint  "Boards  of 

^  Linemen,  10  C.A.R.  602,  613. 

2  Butchers,  10  C.A.R.  465,  495. 

3  Fruitgrowers,  6  C.A.R.  61,  71. 


50  A  NEW  PROVINCE 

Reference,"  and  such  boards  involve  opportunities  for 
meeting  for  discussion  of  methods  and  alleged  griev- 
ances. The  difficulties  which  the  Court  has  to  face 
as  to  such  boards  appear  in  a  passage  in  a  judgment 
of  last  year,  a  passage  which  I  take  the  liberty  of 
setting  out : 

"  The  most  serious  difficulty  that    I    see   in   the 
agreement  and  in  this  award  is  the  absence  of  the 
provision  of  a  board  of  reference — a  board  in  which 
the  employer  and  the  employed  could  take  counsel 
together    for    the    purpose    of     dealing    with    any 
grievances  which  employees  allege  and  which   the 
directors    and    managers,    owing    to    their   remote- 
ness from  the  stress    of   actual   operations,  cannot 
realize.     It  is  one  of  the  signs  of  the  times,  of  which 
employers   would   do  well   to   take   heed,  that   the 
workers  are  gravely  dissatisfied,  because  they  have  no 
voice  whatever  in  the  regulation  of  the  conditions 
under  which  they  spend  so  much  of  their  lives  ;  that 
their  opinions  as  to  the  possibility  of  preventing  un- 
necessary hardship  are  not  to  be  treated  as  being  of 
more  account  than  as  if  they  were  engines  or  horses. 
"  Many  a  grievance,  or  supposed  grievance,  would 
be  removed  before  it  developed  into  a  serious  trouble 
by  a  proper  board  of  reference.     I  have  hoped  and 
worked  for  an  agreement  for  such  boards  in  this  case, 
one  at  least  for  each  undertaking ;   but  the  parties 
cannot  agree  as  to  the  conditions.     The  companies 
want  to  insert  a  provision  that  before  a  grievance  can 
come   before   the   board   of    reference   it   must    be 
brought  by  the  individual  employee  before  his  fore- 
man or  immediate  superior.     The  union  desires  that 
the  grievance  shall  be  brought  before  the  manage- 
ment by  the  works  committee  of  the  union,  and  then, 


FOR  LAW  AND  ORDER  51 

if  necessary,  before  the  board  of  reference  ;  but  it  is 
willing,  as  a  compromise,  to  agree  that  either  the  in- 
dividual or  the  board  may  approach  the  management. 
The  companies  unite  in  insisting  that  the  individual 
employee  must  first  make  the  complaint.  Such  a 
provision  was  not  in  the  agreements  of  1913,  and 
there  is  no  evidence  that  the  lack  of  it  has  had  any 
ill-effect.  But  the  companies  are  firm  on  the  subject. 
It  is  suggested  that  I  should  exercise  my  power 
under  Sec.  40A  to  appoint  a  board  of  reference.  That 
section  enables  me  to  assign  to  a  board  the  function 
of  dealing  with  "  any  specified  matters  or  things  which 
under  the  award  or  order  may  require  from  time  to 
time  to  be  dealt  with  by  the  board."  Unfortunately 
these  words  mean,  according  to  a  majority  of  the 
High  Court,  that  I  must  specify  now,  in  my  award, 
the  specific  grievances  which  the  board  may  deal  with 
(Federated  Engine-drivers  v.  Broken  Hill  Company, 
16  C.L.R.  245).  Apparently  it  is  not  enough  for  me 
to  commit  to  the  board  all  or  any  matters  which  may 
arise — even  arise  under  the  award  or  order.  As  I 
have  said  in  previous  cases,  it  is  impossible  for  me  to 
specify  beforehand  the  grievances  which  will  arise  or 
be  alleged.  Whether  the  view  of  the  High  Court  is 
correct  or  not,  I  shall  obey  it.  I  had  hoped  that 
Parliament  would  have  come  to  the  assistance  of  the 
Court  by  an  amendment  of  the  section,  but  it  has  not 
done  so.  I  cannot  make  use  of  the  section,  at  all 
events,  so  as  to  meet  the  circumstances  of  this  case."  ^ 
The  fundamental  difficulty  of  the  position  seems 
to  be  that  the  employer  and  the  union  look  at  the 
methods  used  from  different  pofnts  of  view.  The 
employer — generally  a  company  acting  through  direc- 

^  Gas  Employees,  11  C.A.R. 


52  A  NEW  PROVINCE 

tors — looks  at  money  results,  at  profits,  at  expenses. 
The  union  looks  at  the  results  to  the  human  instru- 
ment. Both  sides  of  the  subject  ought  to  be  con- 
sidered. It  is  significant  that  the  unions  are  always 
willing  to  have  such  boards,  and  the  Court  often 
manages  to  get  an  agreement  on  the  subject.  The 
board  of  reference  has  been  the  only  means  within 
the  power  of  the  Court  for  meeting  the  increas- 
ing demand  to  which  I  have  referred.  It  meets 
the  demand  to  a  certain  extent,  and  tends  to  further 
developments. 

How  THE  Basic  Wage  is  Found. 

The  "  basic  "  or  living  wage,  the  minimum  wage 
for  the  unskilled  worker,  is  the  primary  factor  in  the 
fixing  of  all  wages  by  award ;  and  the  fixing  of  the 
proper  basic  wage  is  necessarily  of  an  importance 
that  can  hardly  be  exaggerated.  It  must  vary  with 
the  cost  of  living  in  the  various  districts ;  for  instance, 
the  basic  wage  for  the  seaports  would  not  be  a  proper 
basic  wage  for  inland  mining  districts  such  as  Broken 
Hill.  But  sometimes  by  general  consent  a  uniform 
basic  wage  is  desirable,  as  in^the  case  of  the  waterside 
workers  or  seamen ;  and  the  Court  then  takes  as  its 
guide  the  mean  cost  of  living  for  the  several  ports. 
In  such  cases  it  becomes  possible  to  form  some  idea 
of  the  immense  sums  which  an  award  of  the  Court 
may  transfer  from  the  employing  (or  the  consuming) 
class  to  the  employed.  An  increase  of  is.  per  work- 
ing day  for  10,000  men  means  an  increased  expendi- 
ture of  ^^156, 500  per  annum ;  and  there  were  about 
17,000  men  in  the  unions  of  waterside  workers.  In 
that  case  arbitration  was  sought  by  about  150  em- 


FOR  LAW  AND  ORDER  53 

ployers — trading    oversea,    inter-State,    within    the 
State.    Not  only  in  the  vastness  of  the  sums  involved, 
but  in  the  effects  on  families  and  the  proper  nurture 
of  children,   and   in    indirect    consequences   in   all 
employments,  the  responsibility  of  the  Court  is  very 
grave.     The  decisions  of  the  Court  probably  affect 
directly  more  human  lives  than  the  decisions  of  all 
the  other  Courts.     The  Court  has  repeatedly  invited 
full  enquiry  on  scientific  lines  as  to  the  cost  of  living, 
but  neither  the  Government  nor  the  parties  have  yet 
responded.     Preferably  the  enquiry  should  be  made 
by  expert  statisticians  and  on  the  basis  of  distinct 
regimens,  but  the  responsibility  of  fixing  the  basic 
wage  should  be  left  with  the  Court.     In  the  mean- 
time the  Court  has  been  obliged   to   work   out  the 
problem  on  the  best  materials  that  it  can  get.     At 
present  the  Court  takes  as  prima  facie  evidence  the 
findings  as  to  the  cost  of  living  on  then   existing 
habits  in  Melbourne  in  1907,  and  then  it  takes  the 
statistician's  figures  as  to  the   depreciation   in   the 
value  of  money  as  against  commodities  as  prima  facie 
evidence  of  the  increase  in  the  cost  of  living.     The 
Commonwealth  Statistician  has  found  that  in  Mel- 
bourne it  took  in   igi6  26s.  6d.  to  purchase  com- 
modities that  could  be  purchased  in  1907  for  17s.  6d., 
and  the  decrease  in  the  value  of  money  is  nearly  the 
same  elsewhere.     That  is  to  say,  the  increase  in  the 
cost  of  living  is  over  50  per  cent.,  chiefly  owing  to 
the  existing  state  of  the  war. 

It  is  a  curious  fact  that  there  has  been  little  or  no 
attack  on  the  empirical  finding  of  1907  as  to  the 
actual  cost  of  living.  Employers  generally  admit 
that  the  amount  of  42s.  per  week  was  fair  at  that 
time ;  but  there  have  been  of  late  strenuous  attacks 


54  A  NEW  PROVINCE 

on  the  Statistician's  figures  of  increase.  The  Statis- 
tician has  taken  some  forty-seven  staple  articles  of 
food  and  rent  as  consumed  by  all  classes  of  the 
community,  and  has  found  the  changes  in  price  of 
those  articles;  and  he  very  properly  adheres  to  the 
same  articles  and  assumes  that  they  are  consumed  in 
the  same  quantities.  He  does  not,  as  some  people 
fancy,  pretend  to  show  the  cost  of  living  in  a  wage- 
earner's  family ;  but  he  shows  the  depreciation  in  the 
value  of  money  as  regards  the  selected  commodities, 
and,  as  he  says,  "  in  normal  circumstances  properly 
computed  index  numbers  of  food  and  groceries  and 
house  rent  combined  form  one  of  the  best  possible 
measures  of  those  variations  in  the  purchasing  power 
of  money  which  affect  the  cost  of  living."  Then  the 
Court  comes  in,  and,  ^mtil  the  contrary  be  shown,  infers 
that  the  depreciation  in  the  value  of  money  which  is 
found  in  relation  to  the  selected  commodities  is  to  be 
found  also  in  relation  to  the  other  commodities.  The 
method  is  in  accordance  with  the  views  and  inten- 
tions of  the  Statistician  ;  for  he  says  "  once  a  stan- 
dard of  living  or  living  wage  has  been  fixed,  the 
tables  published  .  .  .  can  be  legitimately  used  as 
showing  the  variations  in  the  cost  of  living."  No 
party  is  bound  by  these  tables  as  by  a  matter  of 
absolute  irrefutable  law,  but  they  are  on  the  right 
method,  and  the  Court  makes  use  of  them  until  it 
can  find  better  evidence.^  The  criticisms  made 
hitherto  on  the  Statistician's  findings  are  made 
under  a  misapprehension. 

It  is  the  practice  of  the  Court  to  let  no  considera- 
tions of  competition  with  foreign  countries  reduce 

^  Butchers,  lo  C.A.R.  477-484  ;    Merchant   Service  Guild, 
10  C.A.R,  225  ;  Gas  Employees,  11  C.A.R. 


FOR  LAW  AND  ORDER  55 

what  is  found  to  be  the  proper  basic  wage  ;^  and  this 
practice,  it  must  be  admitted  to  the  credit  of  the 
employers,  has  never  been  disputed  so  far  as  I  know. 
The  proper  sustenance  of  the  persons  employed  (on 
the  basis  of  family  life)  is  treated  in  effect  as  a  first 
charge  on  the  product. 

Secondary  Wage. 

With  the  secondary  wage  the  position  is  different. 
There  is  more  scope  for  compromise  or  arrangement. 
At  the  same  time  it  has  been  found  inadvisable  ex- 
cept in  extreme  circumstances  to  diminish  the  mar- 
gin between  the  man  of  skill  and  the  man  without 
skill.  One  of  the  drawbacks  of  industry  in  Australia 
is  that  the  lads  do  not  learn  their  trades  thoroughly — 
do  not  take  the  trouble  to  become  perfect  craftsmen. 
There  is  a  tendency  to  be  content  with  imperfect 
workmanship ;  to  put  up  with  the  "  handyman,"  and 
his  rule  of  thumb :  to  put  up  with  what  is  *'  good 
enough  "  ;  and  nothing  should  be  done  by  the  Court 
which  would  lessen  the  inducements  to  learn  a  trade 
and  to  learn  it  properly.^ 

However,  when  the  Court  has  increased  the  basic 
wage  because  of  abnormal  increase  of  prices  due  to 
the  war  it  has  not  usually  increased  the  secondary 
wage.  It  has  merely  added  the  old  secondary  wage, 
the  old  margin,  to  the  new  basic  wage.  It  is  true 
that  the  extra  commodities  which  the  skilled  man 
usually  purchases  with  his  extra  wages  become  almost 
as  indispensable  in  his  social  habits  as  the  commodities 
purchased  by  the  unskilled  man,  and  have  no  less 
increased  in  price ;  but  the  Court  has  not  seen  fit  to 

^  Marine  Engineers,  lo  C.A.R.  532. 
2  Butchers,  10  C.A.R.  485. 


56  A  NEW  PROVINCE 

push  its  principles  to  the  extreme  in  the  abnormal 
circumstances  of  the  war,  and  the  moderate  course 
taken  has  been  accepted  without  demur.  I  may  add 
here  that  the  Court,  where  necessary,  adopts  grada- 
tions in  the  secondary  wage.  For  instance,  after 
fixing  the  basic  wage  for  unskilled  labourers  in  the 
gas  employees'  case,  it  awarded  6d.  per  day  for 
men  classed  as  skilled  labourers,  is.  per  day  more  for 
men  in  charge  of  plant,  etc.,  2S.  per  day  more  for 
men  of  necessarily  exceptional  physical  qualities,  etc., 
such  as  stokers,  and  3s.  per  day  more  for  artisans 
fully  trained.^  The  margin  between  the  basic  and 
the  secondary  minimum  follows  the  margin  usually 
adopted  in  the  time  of  unregulated  practice. 

Hours. 

With  regard  to  hours  of  work,  the  Court  generally 
adheres  to  the  Australian  standard  of  forty-eight 
hours  per  week.  Any  overtime  has  to  be  paid  for  at 
higher  rates ;  but  there  are  some  exceptions  to  the 
forty-eight  hours'  rule.  Fewer  hours  have  been  pre- 
scribed where  the  occupation  is  very  nerve-racking ; 
where,  as  in  the  case  of  the  builders'  labourers,  the 
men  have  to  "  follow  the  job  " ;  and  now  in  the  case 
of  underground  mines  and  smelters.^  It  may  interest 
American  readers  to  know  that  as  to  underground 
mines  and  smelting  the  Court  availed  itself  of  the 
reasoning  of  the  Supreme  Court  of  the  United  States 
in  the  constitutional  case  of  Holden  v.  Hardy  (169 
U.S.  366).  In  that  case  a  State  statute  limiting  the 
hours  in  mines  and  smelters  was  upheld,  notwith- 
standing the  14th  Amendment  of  the  Constitution, 

^  Gas  Employees,  11  C.A.R. 

2  Broken  Hill,  10  C.A.R.  155,  185-191. 


FOR  LAW  AND  ORDER  57 

because  the  State  Legislature  had  regarded  the  limi- 
tation as  conducive  to  health  and  life.     The   work 
was  not  only  risky  but  also  unhealthy.    Lead  poison- 
ing and  pneumonia  were  common.     Special  mention 
ought  to  be  made  here  of  the  conduct  of  the  men  at 
the  Port  Pirie  smelters.     The  lead  ore  which  comes 
from  Broken  Hill  is  smelted  at  Port  Pirie,  and  the 
produce  is  sent  during  the  war  to  the  British  Govern- 
ment.    The  men  were  working  seven  shifts  of  eight 
hours,  Sundays  as  well  as  ordinary  days,  and  they 
had  been  for  years  seeking  a  six-day  week  on  a  rota- 
tion scheme ;  but  they  recognized  that  there  was  a 
shortage  of  men  suitable  for  smelters,]and  that  with- 
out the  fifty-six-hour  week  the  continuous  process 
could  not  be  kept  up.    So  they  asked  me  to  postpone 
the  boon  of  shortening  hours  till  after  the  war.   They 
did  this  as  a  gift  to  the  nation  for  the  purposes  of 
the  war,  not  under  compulsion  in  the  interests  of  the 
employers. 

On  the  other  hand,  the  forty-eight-hour  week  is 
not  a  rigid  rule  for  all  occupations.  Sometimes  the 
Court  has  fixed  fifty-two  hours  where  the  nature  of 
the  trade  required  it,  and  where  the  operation  has 
variety  and  is  of  an  open-air  character,  as  in  the  case 
of  certain  carters  and  drivers.^  In  the  case  of  station 
hands  (boundary  riders,  bullock  drivers,  and  generally 
useful  men  employed  by  pastoralists)  it  was  found 
impracticable  to  set  any  definite  limit  to  the  hours 
except  for  those  men  who  were  employed  at  or  about 
the  homestead ;  and  in  the  case  of  the  latter  class  the 
hours  were  fixed  at  fifty-two  with  the  general  assent 
of  employers.^ 

In  connection  with  the  subject  of  hours  I  may 
^  Butchers,  lo  C.A.R.  496,  «  Pastoralists,  11  C.A.R. 


58  A  NEW  PROVINCE 

mention  two  curious  facts  tending  to  show  a  positive 
increase  in  efficiency  and  in  results  arising  from 
well-regulated  pauses  in  muscular  exertion.  In  some 
industries — that  of  the  waterside  workers,  for  instance 
—"  smokos"  have  for  many  years  been  permitted  in 
Australian  practice.  I  have  been  unable  to  find  any 
analogue  in  America  or  in  Europe.  A  '*  smoko  "  is  a 
cessation  for  a  short  rest  period  in  a  run  of  work,  a 
pause  usually  given  without  reduction  of  pay,  and 
experienced  managers  and  foremen  have  assured  me 
that  the  "smoko"  actually  helps  the  working  results. 
The  men  work  with  **  more  heart."  They  take  a 
"  snack,"  or  a  "  pull "  at  their  pipes.  With  the  con- 
sent of  the  employers  the  Court  prescribed  two  night 
"smokos"  of  half  an  hour  each;  but  as  a  day  *' smoko" 
would  in  many  ports  interfere  with  the  work  of  the 
carters  the  matter  of  day  "smoko"  was  left  to  the 
discretion  of  the  employers.^  Another  fact  is  that 
in  shearing  operations  where  there  are  piece-work 
rates,  so  much  per  hundred  sheep,  the  employers 
actually  sought  for  more  pauses  in  the  work  than  the 
union.  Yet  the  employers'  interest  is  clearly  on  the 
side  of  brief  time  of  shearing,  for  the  overhead 
expenses  and  the  wages  of  men  on  daily  wage  run  on 
all  the  time.  The  union  asked  for  two  four-hour 
runs  of  work  between  8  a.m.  and  5.30,  with  one  meal 
between  the  runs,  instead  of  six  runs  with  two  meals 
and  three  **  smokos  "  interposed  between  6  a.m.  and 
6  p.m.  The  Court  prescribed  as  requested  by  the 
employers.^  The  case  of  the  water-side  workers  is  ^ 
case  of  payment  by  time,  and  yet  the  employers  pre- 
fer to  allow  a  pause,  a  deduction  from  the  time  sold 

*  Waterside  Workers,  9  C.A.R.  293,  300,  317. 
"2^  Pastoralists,  11  C.A.R. 


FOR  LAW  AND  ORDER  59 

to  them.  The  other  case  is  one  of  payment  by  result, 
piece-work.  Piece-work  tends  to  speed,  but  tempts 
to  imperfect  workmanship  ;  time-work  tends  to  proper 
care,  but  tempts  to  slowness.  In  certain  metropolitan 
abattoirs  the  manager  prefers  time-work  with  a  tally 
of  fifty-nine  sheep  per  day,  although  in  export  meat 
works  the  average  tally  is  eighty  to  a  hundred  a  day.-^ 
In  the  shearing  of  sheep  of  exceptional  value  it  is 
usual  for  the  employer  to  prefer  payment  by  time 
wages.  In  piece-work  slaughtering  the  inducement 
of  greater  pay  was  not  sufficient  to  prevent  the  union 
from  asking  for  shorter  hours.  The  employers 
opposed,  but  they  have  a  quaint  device  called  "  the 
clock."  The  foreman  tells  the  leading  hand,  the 
"clock-man,"  at  what  rate  per  hour  he  wants  the 
slaughtering  done ;  and  the  employers  say  that  this 
course  is  taken  to  prevent  the  men  from  absenting 
themselves  as  a  consequence  of  over-exertion,  as  well 
as  to  insure  that  the  flesh,  pelt,  etc.,  are  not  injured 
by  too  furious  a  use  of  the  knife.  Speed  for  the  day 
is  not  the  only  thing  to  be  considered. 

Stoppages. 

The  disputes  brought  under  the  attention  of  the 
President  or  Deputy  President,  or  under  the  cog- 
nizance of  the  Court,  since  it  was  started  in  1905, 
are  very  numerous.  There  must  be  several  hundreds 
apart  from  incidental  applications,  and  the  points  in 
dispute  might  almost  be  called  infinite.  The  opera- 
tions of  the  Court  now  occupy  most  of  the  time 
of  two  High  Court  Justices,  but  the  expenditure  of 
time  and  labour  will  probably  be  thought  a  good 
investment.  For,  though  the  disputes  dealt  with  are 
^  Butchers,  10  CA.R.  491. 


6o  A  NEW  PROVINCE 

many,  the  stoppages  of  work*are  very  few ;  and  it  is 
the  prevention  of  stoppages  in  operations  required  by 
the  public  that  is  the  object  of  the  power  given  by 
the  Constitution.  The  work  of  the  country  must  be 
carried  on.  The  community  requires  that  what  it 
needs  shall  be  continuously  supplied,  and  to  that  end 
it  provides  for  the  redress  of  alleged  grievances  a 
tribunal  which  should  render  stoppages  unnecessary- 
In  a  free  country  people  may  think  they  see  the  way 
to  a  better  industrial  economic  system,  and  they  may 
work  towards  that  system,  but  in  the  meantime  food, 
clothing,  and  shelter  must  be  provided,  and  other 
commodities.  The  need  for  the  day's  food  and 
supplies  "  subtends  a  greater  angle "  for  the  time 
being  (the  expression  belongs  to  O.  W.  Holmes,  I 
think)  than  all  our  theories,  and  above  all  the  needs 
of  those  who  are  dearest  to  us,  as  the  most  helpless — 
the  children.  Their  constitutions  and  the  future  of  the 
race  must  not  suffer  by  privation.     Men  have  ever  to 

*'  Keep  the  young  generation  in  hail 
And  bequeath  them  no  tumbled  house." 

In  other  words,  the  people  are  consumers  as  well  as 
producers,  and  the  object  of  the  power  in  the  Con- 
stitution is  primarily  to  protect  the  people  as  con- 
sumers, and,  as  incidental  to  that  end,  to  provide 
means  whereby  producers  can  have  their  legitimate 
human  needs  satisfied  without  recourse  to  stoppages. 
There  should  be  no  more  necessity  for  strikes  and 
stoppages  in  order  to  obtain  just  working  conditions 
than  there  was  need  for  the  Chinaman  of  Charles 
Lamb  to  burn  the  house  down  whenever  he  wanted 
roast  pork.  The  arbitration  system  is  devised  to 
provide  a   substitute   for  strikes  and  stoppages,  to 


FOR  LAW  AND  ORDER  6i 

secure  the  reign  of  justice  as  against  violence,  of 
right  as  against  might — to  subdue  Prussianism  in 
industrial  matters.  Unfortunately  the  public  do  not 
know  all  the  disasters  from  which  they  have  been 
saved  by  the  machinery  of  the  Court.  They  "do  not 
see  because  they  do  not  feel."  They  know  the  incon- 
veniences to  which  they  have  been  put,  but  they  do 
not  realize  the  inconveniences  from  which  they  have 
been  saved.  In  one  case,  for  instance,  little  noticed, 
some  of  the  principal  cities  would  have  been  left 
without  light  but  for  the  interposition  of  the  Court.* 
However,  something  may  be  learned  from  a  com- 
parison. In  Great  Britain,  according  to  Mr.  G.  D.  H. 
Cole  ("  The  World  of  Labour  "),  the  Board  of  Trade, 
acting  under  the  Conciliation  Act  of  i8g6,  dealt  with 
597  cases  up  to  the  end  of  1912,  and  of  those  292 
involved  stoppages;  and  in  1912  of  the  73  cases, 
34  involved  stoppages.  That  is  to  say,  stoppages 
occurred  in  nearly  half  of  the  disputes  handled.  In 
the  case  of  the  Australian  Court  I  can  recall  only  two 
stoppages  extending  beyond  the  limits  of  any  one 
State  in  disputes  so  extending ;  and  yet  during  the 
same  period  strikes  in  local  disputes,  outside  the  com- 
petence of  the  Court,  have  been  very  numerous. 
People  here  know  what  a  gain  there  is  in  the  fact 
that  there  have  been  no  such  social  upheavals  as 
occurred  in  connection  with  the  shearers  and  the 
shipping  employees  before  this  Court  was  constituted. 
The  men  know  well  that  they  cannot  get  arbitration 
if  at  the  same  time  they  try  to  enforce  their  demands 
by  stoppage  of  work.  They  cannot  have  arbitration 
and  strike  too.  I  find  that  in  the  previous  article  I 
stated  that  since  the  Act  came  into  operation  there 
*  Gas  Employees,  ii  C.A.R. 


62  A  NEW  PROVINCE 

had  been  no  strike  extending  beyond  the  limits  of 
any  one  State.  That  cannot  be  said  now;  but  the 
exceptions  are  worthy  of  study. 

The  first  was  that  of  the  coal  miners  at  the  end  of 
October,  igi6.  About  80  percent,  or  90  per  cent,  of 
the  coal  miners  are  in  New  South  Wales,  but  the 
miners  of  Victoria  and  of  Queensland  had  joined  those 
of  New  South  Wales  in  a  federation.  At  the  request 
of  the  federation  the  President  held  a  conference  in 
June,  igi6.  The  principal  subject  of  dispute  was 
a  claim  for  eight  hours  bank  to  bank,  and  no  agree- 
ment was  reached;  but  certain  concessions  were 
accepted  to  tide  over  the  time  till  arbitration,  and 
the  President  promised  to  give  the  case,  for  certain 
reasons,  precedence ;  but  when  the  case  came  on  it 
appeared  that  in  several  of  the  mines  the  men  were 
taking  the  hours  which  they  sought.  The  union 
officials  were  not  obeyed.  The  Court  refused  to 
proceed  with  the  arbitration  until  the  men  resumed 
the  former  hours:  *'  I  shall  certainly  not  go  on  with 
arbitration  with  my  hands  tied,  and  my  hands  would 
be  tied  if  the  men  were  getting  by  direct  action  .  .  . 
that  which  they  are  asking  me  for."  ^  There  followed 
several  adjournments  with  the  view  of  allowing  the 
officials  of  the  federation  to  use  persuasion,  but  the 
matter  was  complicated  by  the  bitter  opposition  of 
the  unions  to  the  proposal  for  conscription,  and  by 
an  extraordinary  antipathy  to  the  Prime  Minister, 
Mr.  Hughes.  They  passed  resolutions  not  to  work 
except  on  the  conditions  named,  and  the  work  was 
stopped  on  or  about  the  day  of  the  referendum.  The 
position  was  very  serious.  The  stocks  of  coal 
available  for  the  gas  companies  were  running  very 

*  Coal  and  Shale  Employees,  10  C.A.R.  246. 


FOR  LAW  AND  ORDER  63 

low,  especially  in  Sydney.     The  Prime  Minister  held 
a  series  of  conferences,  in  which  he  found  that  the 
miners  were  firm  in  their  refusal  to  work  unless  they 
got  the  eight  hours  bank  to  bank,  and  the  employers 
insisted  that  if  this  concession  were  granted  they 
would  have  to  raise  the  price  of  coal.     The  Prime 
Minister  asked  the  President  to  deal  with  the  case  as 
under   a   recent   War    Precautions    Regulation    (of 
doubtful  validity),  and,  as  incidental  to  the  concession 
as  to  hours,  to  find  what  additional  price  the  mine- 
owners  might  charge  for  coal.     All  such  proceedings 
were  outside  my  proper  functions,  but,  as  the  Prime 
Minister  was  in  great  difficulty,  I  was  willing  to  enter 
upon  the  enquiry  as  to  the  claim  for  the  eight  hours 
under  our  own  Act — not  at  the  instance  of  the  union, 
but  on  the  application  of  the  Prime  Minister,  and  if 
the  mine-owners  concurred.     But  I  stipulated  that 
my  hands  must  be  free  either  to  grant  or  refuse  the 
eight  hours  as  should  seem  just.     The  Prime  Minister 
then,  by  other  machinery — assuming  it  to  be  valid — 
caused  the  claims  of  the  miners  and  the  mine-owners 
to  be  granted  without  evidence  and  without  argument 
as  to  the  eight  hours,  the  union  undertaking  that  there 
should  be  no  further  trouble  during  the  war.     It  is  not 
seemly  that  I  should  make  use  of  this  review  for  the  pur- 
pose of  putting  my  view  of  the  action  of  the  Prime 
Minister,  but  those  who  care  to  follow  the  controversy 
will  find  it  in  the  nth  or  12th  volume  of  the  Reports 
of  the  Court.     The  consequences  of  the  action  were 
certainly  disastrous.    The  union  failed  in  its  undertak- 
ing ;  there  were  frequent  local  stoppages  ;  and  at  last, 
in  August,  1 917,  the  men  of  the  union,  with  the  ap- 
proval of  their  leaders,  struck  work  in  sympathy  with 
the  railway  employees  of  New  South  Wales — of  which 


64  A  NEW  PROVINCE 

I  shall  say  more  presently.  This  Court,  at  all  events, 
was  preserved  from  a  course  which  would  have  fatally 
injured  its  character  and  its  influence. 

The  second  case  occurred  about  June,  1917.  The 
glass  bottle  makers  of  three  cities  suddenly  struck 
work.  At  the  request  of  the  employers  the  President 
called  a  conference.  The  dispute  was  as  to  payment 
for  defective  machine-made  bottles.  Nothing  would 
induce  the  men  to  return  to  work  unless  their  demand 
was  conceded.  According  to  their  leaders,  the  men 
thought  that  the  employers  would  yield  rather  than 
have  their  furnaces  extinguished  and  their  plants  idle, 
but  the  employers  did  not  yield.  The  President  gave 
his  sanction  to  a  prosecution  for  penalties.  Certain 
penalties  were  imposed,  and  the  men  had  to  return 
to  work  on  the  employers'  terms.  A  refusal  of  this 
kind  to  accept  arbitration  is  unprecedented,  and  I 
have  not  been  able  to  understand  it,  unless  it  be  an 
explanation  that  the  industry  depended  on  imported 
German  or  Austrian  glass-blowers.^ 

In  addition  to  these  two  cases  there  has  been  a 
"  sympathetic  strike "  on  the  part  of  a  registered 
union ;  but  it  was  not  in  support  of  any  dispute  of 
which  the  Court  could  take  cognizance.  In  August, 
1917,  there  was  a  strike  of  engineers  and  others  in 
the  State  railway  works  of  Sydney.  The, engineers 
struck  work  because  the  Railway  Commissioner  of 
New  South  Wales  (the  railways  belong  to  the  State) 
was  introducing  a  card  system  for  recording  the  time 
taken  by  each  man  in  several  operations.  Then  the 
other  railway  men,  engine-drivers,  stokers,  etc.,  struck 
in  sympathy ;  next  the  Sydney  tramway  men  (Govern- 
ment tramways) ;  then  the  coal  miners ;  followed  by 
1  Glass  Bottle  Making,  11  C.A.R. 


FOR  LAW  AND  ORDER  65 

the  water-side  workers,  the  seamen,  and  so  on.  The 
strike  of  the  waterside  workers  extended  to  the 
principal  ports  of  Australia.  The  waterside  workers 
were  actually  working  under  an  award  of  the  Court ; 
yet  it  is  surely  significant  that  the  alleged  grievance 
from  which  this  general  strike  started  was  not  within 
the  competence  of  this  Court,  could  not  be  handled 
by  this  Court  under  the  law  :  for  two  reasons,  each 
sufficient  in  itself,  (i)  The  dispute  as  to  the  card 
system  was  a  dispute  between  a  State  "  instrumen- 
tality" and  its  employees ;  and,  according  to  a  decision 
of  the  High  Court  given  in  pursuance  of  the  American 
doctrine  of  McCuUoch  v.  Maryland,  etc.,  this 
Australian  Court  of  Conciliation  cannot  touch  a  State 
"instrumentality."^  (2)  The  dispute  as  to  the  card 
system  was  confined  to  one  State.  It  is  not  even  an 
offence  under  our  Act  for  men  to  strike  on  account  of 
a  dispute  as  to  an  industrial  matter  if  the  dispute  be 
confined  to  one  State.  ^  It  appears  that  the  leaders 
of  the  railway  men  in  Sydney  asked  the  Government 
to  refer  the  dispute  to  the  Arbitration  Court  of  New 
South  Wales,  and  that  the  Government  declined.  I 
have  not  been  able  to  ascertain  the  ground  for  the 
refusal,  but  at  all  events  it  is  clear  that  our  Australian 
Court  could  not  deal  with  the  root  of  the  trouble. 

Nevertheless,  the  operations  required  by  the  country 
at  the  wharves  had  ceased,  and  it  became  the  duty  of 
the  Court  to  do  anything  in  its  power  to  get  the 
operations  resumed.  Therefore  on  August  30,  1917, 
the  Court,  at  the  instance  of  some  thirty  employers, 
struck  out  of  the  award  a  clause  which  embarrassed 
them  in  making  use  of  outside  labour.     The  Prime 

^  Federated  Railway  Association,  4  C.L.R.  488. 
^  Coal  and  Shale  Employees,  24  C.L.R.  85. 


66  A  NEW  PROVINCE 

Minister,  however,  had  been  president  of  this  union, 
and  he  evidently  thought  that  something  drastic 
should  be  done  by  way  of  punishment  to  the  members. 
The  public  were  alarmed  and  indignant  at  the  wide- 
spread suspension  of  activities.  The  mdde  of  punish- 
ment which  the  Prime  Minister  chose  was  the  can- 
cellation of  the  registration  of  the  union  in  the  registry 
of  the  Court.  So  he  got  the  Governor-General  to 
sign  a  regulation  as  under  the  War  Precautions  Act 
to  enable  him  to  cancel  the  registration  of  any  union 
on  strike  if  registered  in  the  books  of  the  Court.  On 
the  very  day  that  the  regulation  was  published,  the 
Prime  Minister  caused  an  application  to  be  made  to 
the  President  for  a  rule  nisi  for  the  union  to  show 
cause  before  the  Court  why  the  registration  should 
not  be  cancelled.  This  seemed  to  the  President  to 
mean,  "  You  must  cancel ;  for  if  you  do  not  cancel  I 
shall  myself  cancel."  Such  an  attitude  recalls  the 
efforts  of  the  Tudor  and  Stuart  sovereigns  to  interfere 
with  the  judges  in  the  execution  of  their  duty,  and 
especially  the  amusing  controversy  between  James  I. 
and  Lord  Coke  in  the  evocation  case ;  but  the  Presi- 
dent granted  the  rule  so  that  the  matter  might  be 
discussed.  It  turned  out  on  the  argument  that  the 
Prime  Minister  thought  by  cancellation  to  destroy 
the  award  ;  but  this  was  a  mistake,  for  an  award  is 
not  destroyed  by  cancellation  of  the  registration  of 
the  union.  The  Court  discharged  the  rule.  The 
grounds  were  that  the  powers  to  cancel  were  not  to 
be  used  as  an  instrument  of  fruitless  vengeance  ;  that 
the  cancellation  would  not  free  the  employers  from 
the  obligation  of  the  award ;  that  it  would  be  unjust 
to  members  at  ports  at  which  there  was  no  strike ; 
that  it  would  free  the  property  of  the  union  from 


FOR  LAW  AND  ORDER  67 

penalties  for  future  strikes ;  that  it  would  prevent  the 
union  from  suing  members  for  breach  of  its  rules; 
that  it  would  deprive  the  registrar  of  his  power  to 
get  returns  of  members,  officers,  etc. ;  that  it  would 
make  it  difficult  to  know  whom  to  summon  to  con- 
ferences. Moreover,  the  strike  was  against  the  advice 
of  the  executive  union,  and  the  union  was  now  induced 
by  the  President  to  alter  its  rules  so  as  to  give  to  the 
executive  more  control  over  its  members  and  branches, 
and  so  as  to  forbid  strikes  without  the  consent  of  the 
executive.  Deregistration  would  not  conduce  to 
industrial  peace,  but  would  turn  a  public  responsible 
body  into  an  underground,  irresponsible  combination.^ 
It  is  curious,  indeed,  to  observe  how,  under  the 
southern  sky,  the  position  has  been  reversed,  and  the 
registration  of  unions,  which  nearly  led  to  a  labour 
revolution  in  France  in  Waldeck  Rousseau's  time, 
about  1884,  has  become  a  desideratum  of  the  union, 
is  regarded  by  the  unions  as  a  privilege.  The  Prime 
Minister  was  very  much  displeased ;  but  he  did  not 
attempt  to  make  any  further  use  of  his  supposed 
power  under  the  regulation. 

I  have  felt  it  necessary  to  state  these  three  excep- 
tions at  some  length.  In  the  first  case,  to  speak 
summarily,  the  trouble  was  mainly  pol-itical.  In  the 
third  case  the  Court  had  no  jurisdiction — it  was  for- 
bidden to  touch  the  root  of  the  trouble.  But  the 
second  case  was  a  clear  case  of  strike  for  conditions 
of  work  which  ought  to  have  been  submitted  to  the 
Court.  It  is  satisfactory  to  find  that  in  none  of  those 
cases  was  the  strike  owing  to  the  failure,  or  alleged 
failure,  of  the  Court  to  grant  justice  in  any  dispute 
as  to  which  it  had  jurisdiction.  It  is  significant  also 
^  Waterside  Workers,  11  C.A.R 


68  A  NEW  PROVINCE 

that  the  widespread  strike  of  August  1917  was  in  a 
dispute  which  was  outside  the  jurisdiction  of  this 
Court,  and  which  was  not  submitted  to  the  Court  of 
the  State  in  which  the  dispute  occurred. 

The   Sympathetic   Strike. 

The  occurrences  of  August  1917  have  led  to  the 
consideration  of  the  proper  mode  of  deahng  with  the 
"sympathetic"  strike.  The  difficulty  is  mainly  a 
psychological  difficulty — it  might  be  called  a  moral 
difficulty.  What  is  a  man  to  do  who  wants  to  lead  a 
peaceful  life,  but  whose  comrades  refuse  to  work,  in 
order  to  aid  other  unionists  in  their  struggle  with 
other  employers  ?  He  wants  to  be  true  to  unionism, 
and  his  comrades.  He  hates  the  idea  of  taking, 
advantage  of  his  comrades'  self-denial,  of  taking  a  job 
that  one  of  them  might  get  but  for  making  common 
cause  with  those  who  have  an  alleged  grievance : 

"  The  pathetic  feature  of  the  position  is  that  most 
of  the  men  think  that  by  ceasing  work  in  sympathy 
with  the  New  South  Wales  railway  men  they  are 
doing  what  is  virtuous — sacrificing  themselves  for 
their  fellows ;  or,  putting  the  matter  in  another  way, 
they  are  afraid  of  being  charged  with  perfidy  towards 
other  unionists.  If  men  in  a  union  could  be  brought 
to  see  that  their  duty  to  the  public,  to  their  human 
kind,  is  higher  than  their  duty  to  other  unions 
(whether  the  other  unions  are  right  or  wrong),  the 
problem  of  sympathetic  strikes  would  be  nearly  solved. 
If  they  could  be  brought  to  weigh  the  probabilities 
of  advantage  coming  to  the  fighting  union  from  the 
sympathetic  strike  against  the  certainty  of  general 
loss,  unemployment,  misery,  this  would  also  help  to 
the  solution  of  the  problem."^ 

1  Waterside  Workers,  August  30,  1917,  11  C.A.R. 


FOR  LAW  AND  ORDER  69 

Transport  workers,  especially,  of  all  kinds,  are 
always  made  to  bear  the  brunt  of  the  struggles  of 
other  unionists.  The  grievance  is  not  the  grievance 
of  their  union,  and  there  is  nothing  for  the  Court  to 
arbitrate  about,  no  subject-matter  in  dispute  between 
the  sympathetic  striker  or  his  union  and  any  employer. 
It  may  be  said  that  an  Arbitration  Court  cannot  be 
expected  to  achieve  the  impossible,  that  it  must  stop 
short  of  a  case  in  which  there  is  no  alleged  industrial 
grievance  as  between  the  sympathetic  striker  and  his 
employer,  and  that  the  Court  ought  not  to  attempt 
to  take  away  the  right  of  every  man  to  put  his  hands 
in  his  pockets  and  to  say,  "  I  shall  not  accept  the 
work  offered — no  matter  what  my  reason  may  be." 
Individual  freedom  of  action  to  work  or  not  to  work 
must  be  preserved  at  all  costs ;  and  yet  it  cannot  be 
right  that  the  community  should  be  wilfully  held  up 
in  its  necessary  activities  when  the  community  pro- 
vides means  for  preventing  the  oppression  of  the 
poor  for  their  poverty.  It  would  be  a  great  gain  to 
the  community  if  each  union  were  to  confine  its 
efforts  to  its  own  grievances.  In  the  case  of  the 
engine-drivers,  a  class  of  workers  whose  members 
are  found  in  all  sorts  of  undertakings,  the  Court 
intimated  that  an  award  for  such  a  craft  should  be 
regarded  as  a  special  privilege  entailing  special  obliga- 
tions, and  asked  what  the  members  would  do,  for 
instance,  in  a  strike  of  miners — would  they  lower  and 
raise  the  officials  and  any  men  remaining  at  work  ? 
The  leaders  of  the  union  were  reasonable,  admitted 
that  the  members  should  do  so,  and  gave  the  Court 
an  undertaking  to  that  effect.  Then,  in  the  case  of 
the  Merchant  Service  Guild,  I  found  that  the  masters 
and  officers  of  the  vessels  were  required  to  contract 


70  A  NEW  PROVINCE 

to  do  manual  work  if  and  when  required.     This  was 
obviously  meant  to  provide  for  the  case  of  the  seamen 
or  others  striking.     The  Guild  objected  to  this  clause, 
and  the  Court  forbade  the  insertion  thereof  in  any 
contract.     The  masters  and  officers  were  to  carry  out 
their  own  function  whatever  men  of  other  unions  did. 
In  the  case  of  the  waterside  workers  just  quoted,  where 
so  many  members  joined  in  a  sympathetic  strike  in 
aid  of  the    New   South    Wales   railway   employees 
(employees  whom  the  Court  had  no  jurisdiction  to 
touch)  the  union  consented  to  give  a  bond  rendering 
the  union  liable  to  £50  for  each  time  that  any  two  or 
more  members  of   the  union  in  combination  struck 
work  or  refused  to  accept  work  as  a  means  of  enforcing 
compliance  with  any  demand  made  by  them  or  in 
their  behalf  on  any  respondents  bound  by  awards  of 
the  Court  in  favour  of  the  union,  or  with  any  demand 
made  by  any  other  union  on  any  employer  or  em- 
ployers.    It  was  gratifying  to  find  that  the  leaders  of 
the  union  accepted  the  position  as  a  fair  one — "  that 
in  conceding  to  members  of  the  union  safeguards  of 
the  kind  now  suggested  the  Court  should  require  the 
members  to  forgo  combination  to  enforce  demands 
on  the  employers  while  preserving  their  individual 
independence — their  full  liberty  individually  to  refuse 
or  to  take  work  offered.    For  the  work  of  the  country 
must  be  done,  and  so  long  as  the  law  provides  an 
appropriate  remedy  for  any  injustice  the  remedy  of 
withholding  labour  in  combination  in  such  a  way  as 
to  prevent  necessary  operations  is  intolerable. "^     I 
may  add  that  the  union  so  altered  its  rules  as  to  make 
it  practically  a  breach  of  loyalty  to  the  union  to  strike 
or  refuse  work  in  combination  without  the  consent 
^  Waterside  Workers,  June  28,  1918,  12  C.A.R. 


FOR  LAW  AND  ORDER  71 

of  the  central  executive.     The  union  applied  to  the 
Court  to  restore  the  privilege  of  preference  in  employ- 
ment, a  privilege  which  had  been  conceded  to  the 
union  by  voluntary  agreement  with  the  employers  on 
representations  made  by  the  union  that  there  would 
be  no  stoppage  of  operations ;  but  in  the  meantime 
the  employers   had   terminated   the   agreements   in 
pursuance  of  the  powers  therein,  and  had  succeeded 
in  getting  their  work  done  by  others  under  promises 
that  these  others  would  get  preference  in  employment ; 
and  the  Court  refused  to  interfere.     It  did  not  grant 
preference  to  the  so-called  "  loyalists;"  but  it  declined 
to   give   preference  to   members  of  the  union  and 
thereby   interfere  with   arrangements    which    were 
successful   so  far  as  achieving  a  result   which  the 
public  needed  so  badly,  especially  under  war  con- 
ditions.    The  ships  were  being  loaded  and  unloaded, 
and  that  was  enough.     In  another  case  the  Court 
dismissed   the   matter   of   the   dispute,    refused    to 
arbitrate  for  a  union  whose  members  were  involved 
in  this  sympathetic  strike.   The  Court  had  cognizance 
of  a  dispute  on  the  application  of  an  association  of 
iron-workers.      Information    having   been    received 
that  the  members — about  3,000 — had  struck  work  in 
New  South  Wales  in  sympathy  with  the  New  South 
Wales  railwaymen,  the  President  directed  the  case 
to  be  put  in  his  list  with  liberty  to  any  party  to  file 
affidavits.     It  appeared  that  the  members,  though 
engaged  in  manufacturing  steel  for  rails  and  rifles 
required  by  the  British  and  Australian  and   State 
Governments,  had  struck ;  and  the  Court  dismissed 
the  dispute  under  a  clause  of  the  Act  empowering 
the  Court  to  dismiss  it  if  further  proceedings  are  not 
desirable  in  the  public  interest  (s.  38  [h]). 


72  A  NEW  PROVINCE 

"  This  Court  has  repeatedly  expressed  the  value 
which  it  attaches  to  unionism,  and  with  no  uncertain 
voice,  but  this  Court  cannot  help  unionism  in  a 
struggle  against  the  public  interest."^ 

It  is  hard  to  see  what  more  could  be  done  by  the 
Court,  a  Court  created  by  and  for  the  public  of 
Australia.  It  remains  to  be  seen  how  far  these 
methods  will  be  successful.  The  only  complete 
remedy  is  the  adoption  of  a  clearer  and  higher  ideal  of 
duty.    The  moral  and  psychological  problem  remains. 

Improvements  in  the  Law,  etc. 

I  referred  in  the  previous  article  to  the  applications 
previously  made  to  the  Court  for  Prohibition  against 
the  President  for  alleged  excess  of  the  constitutional 
powers.  The  application  mostly  turned  on  the  mean- 
ing of  the  word  "  dispute,'"  or  the  words  "  extending 
beyond  the  limits  of  any  one  State ;"  and  the  prohibition 
proceedings  were  extraordinarily  long  and  costly. 
The  Court  of  Conciliation  might  take  weeks  in  inves- 
tigating the  merits  of  the  case  and  in  making  an 
award,  and  then  any  one  dissatisfied  party  might 
bring  proceedings  for  prohibition  on  the  ground  that 
there  was  no  "  dispute,"  etc.  The  proceedings  were 
generally  unsuccessful,  it  is  true,  but  the  uncertainty 
as  to  being  able  to  hold  an  award  should  they  get  it 
deterred  many  unions  from  approaching  the  Court  for 
relief  instead  of  stopping  work.  My  American  friends 
will  be  pleased  to  know  that  this  obstacle  to  the  use- 
fulness of  the  Court  is  no  longer  formidable.  In  the 
first  place  the  High  Court  has  better  defined  the 
meaning  of  the  words  by  certain  decisions ;  and  in 
the  second  place  Parliament  has  amended  the  Act  by 
^  Ironworkers,  ii  C.A.R. 


FOR  LAW  AND  ORDER  73 

enabling  a  Justice  of  the  High  Court  to  decide 
whether  there  is  a  "dispute extending"  or  not,  before 
arbitration,  and  his  decision  is  final  (Sec.  2IAa).  Now, 
when  a  dispute  extending  is  not  admitted  an  applica- 
tion is  made  to  a  Justice  of  the  High  Court  for  such 
a  decision  before  the  case  is  dealt  with  in  the  Court 
of  Arbitration. 

Another  great  addition  to  the  usefulness  of  this 
Court  has  been  made  by  a  decision  of  the  High  Court 
to  the  effect  that  the  Court  of  Conciliation  has  juris- 
diction to  "  prevent  "  an  industrial  dispute  extending 
by  taking  the  quarrel  in  hand  and  even  making  an 
award  as  to  it  before  it  extends  to  other  States.^  For 
instance,  there  is  a  dispute  at  the  port  of  Rockhamp- 
ton.  If  it  be  not  settled  there  the  members  of  the 
union  in  the  ports  of  other  States  will  probably  treat 
the  vessels  which  come  from  Rockhampton  as 
"  black  "  and  refuse  to  work  them.  The  Court  of 
Conciliation  in  such  circumstances  has  on  several 
occasions  settled  the  dispute  before  it  has  extended.^ 

The  utility  of  the  power  conferred  on  the  President 
to  call  a  compulsory  conference  of  representative 
disputants  has  been  time  after  time  demonstrated. 
Frequently  the  conference  has  prevented  a  local 
strike  which  was  imminent.  Frequently,  arrange- 
ments are  made  for  carrying  on  work  until  award  ; 
frequently,  quarrels  are  settled  or  agreements  are 
made  as  the  result  of  a  conference.  The  power  to  call 
a  conference  is  discretionary  ;  and  if  in  any  locality 
members  of  the  union  have  struck  work  the  President 
refuses  to  call  a  conference  unless  work  is  resumed  in 

1  Merchant  Service  Guild,  16  C.A.R.  591. 

2  Waterside  Workers,  10  C.A.R.  429  ;  Merchant  Service 
Guild,  10  C.A.R.  214,  228. 


74  A  NEW  PROVINCE 

the  meantime  on  the  old  terms  (that  is  to  say,  refuses 
to  call  a  conference  at  the  instance  of  the  union). 
This  refusal  has  on  some  occasions  set  the  wheels  of 
industry  going  again  until  the  award  has  been  made. 

Since  the  previous  article,  employers  more  fre- 
quently than  before  seek  the  assistance  of  the  Court 
for  the  settlement  of  disputes.  They  often  ask  for 
compulsory  conferences.  For  instance,  the  fruit- 
growers at  the  interesting  settlements  of  Mildura  and 
Renmark  on  the  Murray  River  had,  year  after  year, 
much  trouble  with  the  seasonal  employees  for 
picking,  packing,  etc.  An  award  was  made  in  1912 
at  the  instance  of  the  Rural  Workers'  Union  and 
another,  and  the  work  went  on  for  the  term  of  the 
award,  three  years,  without  any  conflict.  When  the 
term  expired  the  union  had  been  disbanded,  its 
members  having  joined  the  Australian  Workers' 
Union.  The  employers  wanted  to  get  the  same  award 
as  between  themselves  and  the  Australian  Workers' 
Union,  and  the  latter  union  was  willing  to  accept  the 
same  award  ;  but  there  was  no  dispute,  and  therefore 
the  Court  had  no  jurisdiction.  Subsequently,  in  view 
of  the  increase  in  the  cost  of  living,  the  Australian 
Workers'  Union  made  a  demand  for  higher  wages, 
etc  This  demand  was  disputed,  and  then  the  Court 
got  jurisdiction.  After  a  discussion  in  conference  an 
agreement  was  made  and  filed,  and  the  work  went  on 
smoothly.^  This  case,  however,  points  to  the  incon- 
venience of  limiting  the  jurisdiction  of  the  Court  to 
disputes.  It  may  be  that  the  same  power  that  deals 
with  the  disputes  should  be  enabled  to  regulate 
labour  where  necessary. 

The  President  has  frequently  been  asked  to  act  in 
»  Fruitgrowers,  9  C.A.R.  288. 


FOR  LAW  AND  ORDER  75 

a  one-State  dispute  as  voluntary  arbitrator  on  an 
ordinary  submission  by  agreement.  The  request  has 
generally  to  be  refused,  but  in  exceptional  cases  the 
Court  has  acted  at  the  request  of  Ministers  of  a  State 
or  of  the  Commonwealth,  especially  where  the  matter 
affects  the  defence  of  the  Commonwealth. 

Another  encouraging  feature  of  the  position  is  that 
the  practice  of  arbitration,  instead  of  the  practice  of 
strike,  is  favoured  by  all,  or  nearly  all,  the  greater 
unions.  Federal  unions  are  frequently  constituted 
with  the  avowed  view  of  making  common  cause  in 
the  several  States  as  to  existing  grievances,  and  of 
getting  the  Court  to  settle  the  dispute  all  round.  The 
Australian  Workers'  Union — the  greatest  union  in 
Australia,  comprising  about  70,000  members  in 
pastoral,  farming,  and  other  rural  occupations — is  a 
staunch  supporter  of  the  work  of  the  Court.  For- 
merly there  was  continual  trouble  with  the  shearers, 
shed  hands,  wool  pressers,  etc.  There  was  no  cer- 
tainty that  the  pastoralists  could  get  their  work  done, 
and  yet  wool  is  probably  the  principal  export  of 
Australia.  Since  the  constitution  of  this  Court  there 
has  been  no  general  strike  of  these  men.  There  have 
been  some  local  troubles,  but  the  executive  of  the 
union  brings  all  its  influence  to  bear  in  favour  of 
waiting  for  the  Court.  In  191 1  the  Court  gave  an 
award  which  did  not  increase  the  existing  rate  for 
shearing  (24s.  per  hundred),  and  it  actually  reduced 
some  rates  for  wool  pressers  ;  and,  although  in  the 
succeeding  years  the  cost  of  living  increased  to  a 
formidable  extent,  the  executive  of  the  union  insisted 
on  the  members  taking  employment  under  the  award 
conditions  until  the  Court  should  deal  with  an  ap- 
plication for  an  advance.     In  1917  the  union  came 


76  A  NEW  PROVINCE 

before  the  Court  for  an  advance  to  30s.  per  hundred, 
and,  with  the  consent  of  the  employers  who  appeared, 
the  Court  prescribed  that  rate.  The  same  union 
recently  took  under  its  wing  the  workers  called 
"  station  hands  " — boundary  riders,  bullock  drivers, 
and  generally  useful  employees  on  the  huge  pastoral 
properties.  The  conditions  of  these  station  hands 
had  hitherto  been  wholly  unregulated.-  The  men 
were  paid  wages  which  were  wholly  inadequate  for 
family  life — some  20s.,  some  25s.  per  week  or  less. 
The  Court  granted  them  the  basic  wage,  but  allowed 
the  employers  to  satisfy  the  wages  in  kind  by 
allowances  and  perquisites  (such  as  residence  and 
provisions)  to  an  amount  not  exceeding  30s.  per 
week,  provided  that  the  value  of  the  allowances  and 
perquisites  be  approved  by  a  board  of  reference  or  by 
a  union  official.  I  have  found  gratification  expressed 
in  unexpected  quarters  on  account  of  this  approach 
to  the  solution  of  a  very  difficult  problem.  One  of 
the  drawbacks  of  Australia  is  the  want  of  population 
in  the  back  country,  the  drift  to  the  cities,  to  occupa- 
tions which  are  regulated,  and  which  provide  oppor- 
tunities for  family  life.  On  the  whole,  and  although 
it  involves  great  difficulty  and  much  toil,  I  am  safe  in 
saying  that  this  interesting  Australian  experiment  is 
so  far  a  success,  and  that  there  is  not -the  slightest 
indication  of  any  movement  to  revert  to  the  old 
anarchic  state.  There  are  plenty  of  suggestions, 
however,  for  the  improvement  of  the  system. 

There  is  a  very  real  antinomy  in  the  wages  system 
between  profits  and  humanity.  The  law  of  profits 
prescribes  greater  receipts  and  less  expenditure — 
including  expenditure  on  wages  and  on  the  protection 
of  human  life  from  deterioration.     Humanity  forbids 


FOR  LAW  AND  ORDER  ^^ 

that  reduction  of  expenditure  should  be  obtained  on 
such  lines.  Other  things  being  equal,  the  more 
wages,  the  less  profits :  the  less  wages,  the  more 
profits.  It  is  fo|ly  not  to  admit  the  fact  and  face  it. 
Moreover,  the  economies  which  are  the  easiest  to 
adopt  in  expenditure  tend  to  waste  and  degradation 
of  human  life — the  most  valuable  thing  in  the  world  ; 
therefore,  so  long  as  the  wage  system  continues  there 
is  need  of  some  impartial  regulating  authority.  Even 
if  the  wage  system  were  to  be  abolished  to-morrow, 
as  some  thinkers  desire,  if  in  some  way  the  producers 
had  an  equal  influence  on  the  mode  of  producing,  and 
equal  opportunity  for  self-expression  in  the  product, 
there  would  be  need  still  for  regulation.  In  proposi- 
tion 30  of  the  previous  article  it  is  stated  that  *'  the 
Court  refuses  to  dictate  to  employers  what  work  they 
shall  carry  on,  and  how,"  etc.  For  **  employers  " 
substitute  "  elected  directors  of  industry,"  and  the 
proposition  would  remain  sound.  Even  elected 
persons  are  sometimes  found  indifferent  to  the  legiti- 
mate claims  of  a  minority.  Even  unions  have  been 
found  to  disregard  the  just  interests  of  craftsmen  in 
their  ranks,  if  the  craftsmen  are  few  in  numbers. 
Those  who  favour  new  systems  as  the  result  of  some 
cataclysm  or  catastrophe  or  revolution,  and  treat  with 
scorn  industrial  tribunals  as  mere  alleviations,  or  as 
mere  devices  to  bolster  up  the  existing  system,  had 
surely  better  reconsider  their  opposition.  Let  not 
the  better  be  always  the  enemy  of  the  good. 


78  A  NEW  PROVINCE 


CHAPTER  III. 

An  Article  written  to  the  Harvard  Law 
Review,  December,  1920, 

Readers  of  the  Harvard  Law  Review  who  have 
perused  the  two  previous  articles  under  this  heading 
(November  1915,  January  1919)  may  be  interested 
in  reading  of  the  more  recent  developments  of  the 
Commonwealth  Court  of  Conciliation  and  Arbitra- 
tion in  Australia. 

There  are  three  main  aspects  in  which  the  results 
of  such  an  experiment  may  be  considered:  (i)  How 
far  continuity  of  industrial  operations  is  secured ; 
(2)  how  far  the  conditions  of  the  workers  have  been 
improved ;  and  (3)  how  far  the  use  of  human  life  for 
industrial  processes  has  been  reduced  to  system  and 
standardized.  The  first  aspect  appeals  mainly  to  the 
employing  class;  the  second  to  the  employees;  the 
third  to  those  who  study  the  development  of  law  and 
order  in  human  relations.  All  three  aspects  concern 
the  whole  community. 

I.  Never  has  there  been  such  industrial  unrest  as 
at  present  throughout  the  world.  Owing  to  causes 
which  I  need  not  stay  to  consider,  the  cost  of  living 
has  risen  everywhere  during  the  Great  War ;  and  it 
is  still  rising.  There  is  a  shortage  of  commodities ; 
the  demand  for  labour  has  increased,  and  much  ex- 
ceeds the  supply ;  the  strategic  position  of  the  class 
who  take  employment  is  temporarily  superior  to  that 
of  the  class  who  give  employment.     Vague  and  ill- 


FOR  LAW  AND  ORDER  79 

considered  proposals  for  the  immediate  introduction 
of  a  new  social  order  have  been  spread  abroad,  and 
in  remote  Australia  as  well  as  elsewhere.  In  the 
whirling  confusion  of  the  times,  how  far  has  this 
Court  aided  in  securing  the  continuity  of  industrial 
operations  ?  For  the  answer  to  this  question,  we  are 
largely  indebted  to  a  rash  speech  made  by  a  Federal 
Minister  some  twelve  months  ago.  Possibly  the 
speech  was  meant  to'prepare  the  public  mind  for  the 
enunciation  of  some  Government  policy,  not  yet 
disclosed.  The  Minister  quoted  the  Commonwealth 
Statistician  as  showing  that  there  were  1,647  strikes 
in  Australia  during  the  years  1914-15-16-17 ;  and  he 
said  that  the  hopes  of  the  framers  of  the  Federal 
Constitution,  in  inserting  the  provisions  under  which 
the  Court  has  been  created,  have  been  disappointed. 
Of  course,  it  is  not  the  practice  to  treat  police  as 
useless  because  order  is  not  always  kept  in  the 
streets,  or  to  treat  criminal  courts  as  useless  because 
there  are  still  crimes.  But  let  the  challenge  be 
accepted  as  it  stands.  So  far  as  can  be  traced,  only 
three  of  these  1,647  strikes  occurred  in  disputes  that 
could  possibly  be  entertained  by  this  Court.  It  is 
not  quite  clear  as  to  the  third,  but  I  give  to  the 
opponents  of  the  Court  the  benefit  of  the  doubt. 

The  Court  is  empowered  to  deal  with  such  disputes- 
as  extend  beyond  the  limits  of  any  one  State ;  and 
before  the  Court  was  created  there  were  many  strikes 
in  such  disputes.  Even  from  1904,  when  the  Court 
was  created,  up  to  May,  1919,  there  were  onlj^  three 
disputes  at  the  most  within  its  jurisdiction  that  wer*e 
accompanied  by  a  strike — partial  or  general.  It  is 
true  that  there  was  another,  a  very  serious  strike,  in 
1917,  and  that   it   extended,   as   a    "  sympathetic " 


8o  A  NEW  PROVINCE 

strike,  beyond  one  State;  but  as  the  dispute  was 
between  engineers  employed  by  the  State  Railways 
of  New  South  Wales  and  the  New  South  Wales 
Government,  and  as,  under  the  accepted  law,  this 
Court  could  not  touch  the  State  railways,  the  dispute 
was  outside  its  jurisdiction. 

The  greater  the  existing  unrest,  the  more  remark- 
able do  these  figures  appear.  In  Article  II.,  I  have 
disclosed  the  circumstances  of  two  out  of  the  three 
strikes.  Yet  a  Minister  for  Labour  in  Great  Britain 
(Sir  Robert  Home)  said,  a  few  months  ago,  that 
the  Act  is  an  admitted  failure.  I  do  not  know  where 
he  got  his  information ;  perhaps  from  newspapers, 
perhaps  from  the  speech  of  the  above-mentioned 
Australian  Minister.  At  all  events,  the  eyes  of  the 
public  have  been  opened  by  the  publication  of  the 
figures,  and  the  speech  of  the  prophet  has  ended  in 
a  blessing  instead  of  a  curse. 

But,  apart  from  these  telling  figures,  there  have 
been,  to  my  personal  knowledge,  many  cases  in  which 
strikes  would  have  occurred  but  for  the  influence  of 
the  Court.  It  is  quite  a  common  thing  for  the  officers 
of  a  union  to  restrain  their  members  from  striking  on 
the  ground  that  the  claims  are  to  be  brought  before 
the  Court,  and  that  the  Court  will  not  deal  with  them 
if  the  members  strike  to  obtain  what  they  seek  from 
the  Court  (as  in  the  coal  miners'  strike  mentioned  in 
Article  II.).  For  the  Court  refuses  to  exercise  its 
powers  (at  the  instance  of  the  union)  under  the 
pressure  of  strike.  There  is  then  no  guarantee  of 
resumption  of  work  unless  the  Court  grant  just  what 
the  union  asks ;  and  the  Court  refuses  to  act  under 
such  constraint.  But  of  the  number  of  strikes  that 
have  been  averted  through  the  influence  of  the  Court 


FOR  LAW  AND  ORDER  8i 

no  record  is  kept.  Since  May,  1919,  however,  the 
number  of  strikes  in  disputes  which  the  Court  has 
power  to  handle  has  increased.  There  was,  first,  the 
Seamen's  strike,  May  to  August,  igig ;  then  the 
Marine  Engineers'  strike ;  and  now  (July,  1920) 
the  Gas  strike.  The  facts  of  these  strikes  are  worthy, 
each,  of  separate  study. 

I   include  the  Seamen's  strike,  although  it   now 
appears  from  a  decision  of  the  Full  High  Court  that 
the  dispute  as  to  wages  and  most  of  the  conditions 
was  not  within  the  jurisdiction  of  the  Court  of  Con- 
ciliation at  all ;  for  the  parties  were  at  the  time  under 
an  award  whose  term  had  not  expired.     But,  as  the 
dispute  was  at  the  time  believed  to  be  and  treated  as 
being  within  the  jurisdiction,  I  include  this  strike  in 
my  list.     The  men  were  excited  by  the  exceptionally 
high  rates  granted  in  Great  Britain  and  in  the  United 
States  as  a  consequence  of  the  war.     Australian  sea- 
men had  prided  themselves  on  being  the  best  paid  in 
the  world,  and  now  found  themselves  left  in  the  rear. 
They  did  not  stay  to  consider  that  the  cost  of  living 
had  increased  far  more  in  Great  Britain  and  in  the 
United  States  than  in  Australia;  according  to  the  latest 
figures    of    the    Statistician   the   increase   in    Great 
Britain  since  July,   1914,  is  133  per  cent. ;   in  the 
United  States,  96  per  cent. ;  in  Australia,  63*5  per 
cent.     They  did  not  stay  to  consider  that  the  increase 
in  rates  was  largely  due  to  the  risk  from  submarines. 
They  did  not  stay  to  consider  that  the  enormous 
increase  in  American  rates  was  due  to  the  efforts  made 
to  find  competent  men  for  the  new  merchant  fleet  of 
the  United  States.     In  Australia,  the  Government 
was,  for  the  time,  the  principal  shipping  employer ; 
for,  under  the  exigencies  of  war,  the  Government  had 

6 


82  A  NEW  PROVINCE 

purchased  many  ships,  and  had  also  taken  over  on 
charter,  on  a  tonnage  basis,  nearly  all  of  the  Australian 
interstate  ships  and  crews,  but  on  the  condition  that 
any  increases  in  wages  should  be  borne  by  the 
Government.  So  the  union  approached  the  Govern- 
ment Controller  in  April,  1919,  with  demands  for 
increased  rates  and  other  matters.  The  Controller 
refused  to  grant  any  concession,  and  the  men  left 
the  ships.  Then,  and  not  till  then,  the  Controller 
asked  the  President  to  call  a  conference.  Having 
called  it,  I  found  that  the  men  were  directed  by  leaders 
who  had  come  from  other  countries,  and  who  were 
not  familiar  with  or  favourable  to  our  Australian 
methods.  One  of  the  leaders,  a  man  from  Jersey, 
waxed  indignant  because  the  Court  had  not,  in  its 
previous  award,  granted  provisions  for  better  accom- 
modation for  the  men,  and  was  much  perplexed  when 
told  that  the  Court  could  not  have  granted  what  had 
not  been  claimed.  These  leaders,  coming  from  other 
parts  of  the  world,  believed  in  direct  action — compul- 
sion by  strike ;  the  Court  was  a  mere  capitalistic 
device,  etc.  The  men  were  not  to  go  back  to  the 
ships  until  they  got  what  they  wanted.  The  Presi- 
dent refused  to  refer  the  matter  into  Court  for 
consideration  until  the  men  returned  to  the  ships,  as 
the  Court  could  not  act  freely  under  such  conditions. 
The  distress  caused  to  the  public  by  the  stoppage  of 
the  ships  can  easily  be  imagined.  The  Government, 
it  was  said,  must  do  something ;  so  a  Federal  Minister 
held  a  private  conference  with  the  leaders,  and,  on  the 
men  returning  to  the  ships,  immediately  announced 
that  he  had  granted  concessions.  The  concessions 
included  the  full  increase  in  rates  that  the  union 
sought.     Each  A.B.  got  ;£'i4  per  month  (in  addition 


FOR  LAW  AND  ORDER  83 

to   keep) ;    each    fireman    3^16.     No    reasons  were 
given. 

It  is  easy  to  purchase  peace  in  this  way — for  a  time. 
But  in  granting  the  concessions,  the  Minister  did  not 
provide  for  the  other  ratings  in  the  ships — the  officers, 
the  marine  engineers,  the  cooks,  the  stewards.  He 
did  not  treat  those  who  had  not  struck  as  well  as 
those  who  had.  The  effect  was  soon  apparent.  The 
marine  engineers  struck.  These  are  well-trained 
fitters  who  pass  examinations  in  theory  and  in  prac- 
tice; and,  having  the  control  of  the  firemen  in  the 
stoke-hold,  they  have  always  been  paid  higher  rates. 
But  now  the  junior  engineer  found  that  the  fireman 
who  was  under  his  orders  got  £16  per  month,  whereas 
he  himself  got  only  ^15  los.  It  so  happened  that  the 
Full  High  Court  had  just  decided  that  a  union  which 
is  under  an  award  whose  term  has  not  expired  could 
get  no  relief  from  the  Court  of  Conciliation ;  and  the 
engineers  were  under  such  an  award.  They  had  no 
remedy  but  strike ;  and  they  struck.  They  imitated 
the  seamen  ;  and  by  strike  the  junior  engineers  were 
successful  in  getting  from  the  Government  £ig  per 
month,  instead  of  £15  los.  When  the  seamen 
returned  to  the  ship,  the  stewards,  etc.,  were  also 
thrown  out  of  work  by  the  seamen's  action,  refused 
to  sign  the  ship's  articles  again  unless  they  got  pro- 
portionate concessions ;  and  they  got  them.  The 
masters  and  officers  also  insisted  on  proportionate 
concessions,  and  they  would  have  struck  but  for  the 
Prime  Minister  promising,  at  the  last  hour,  to  give 
them  (March,  1920).  The  charter-party  was  termin- 
ated by  the  Government  in  April;  the  ship-owners 
have  now  to  carry  on  business  as  best  they  can ;  and 
the  Court  has  to  try  to  bring  order  into  the  chaos 


84  A  NEW  PROVINCE 

created  by  the  Government.     For  the  other  unions 
are  quick  to  understand  what  really  has  happened. 

In  December,  1919,  the  members  of  the  union 
employed  by  the  Metropolitan  Gas  Company  of 
Melbourne  struck  for  higher  wages.  The  dispute  was 
not  within  the  competence  of  the  Court,  for  it  did  not 
extend  to  any  other  State ;  but  after  three  or  four 
days  the  Premier  of  the  State,  fearing  that  the  city 
would  be  left  in  darkness,  called  the  leaders  to  confer 
with  him.  The  result  of  the  conference  was  that  the 
company  granted  increased  rates,  and  proceeded  to 
increase  the  price  of  gas.  December  was  a  summer 
month;  and  the  union  was  emboldened  to  try  the 
effect  of  a  threat  to  strike  in  winter.  Most  of  the 
poorer  classes  use  gas  for  light,  for  heat,  for  cooking. 
In  May  last,  the  union  presented  a  huge  log  of 
demands  to  the  principal  employers  in  several  States, 
including  demands  for  higher  wages,  for  a  limit  of  40 
hours'  work  per  week,  etc.,  etc. ;  but  the  union  wanted 
certain  immediate  concessions  as  from  the  30th  April. 
There  was  fair  reason  for  asking  for  immediate  con- 
cessions, if  we  assume  that  the  claims  were  fair ;  for 
it  had  been  decided  by  the  Full  High  Court  that, 
under  the  Act,  ah  award  if  made  could  not  cover  the 
full  time  to  which  the  dispute  related,  but  only  the 
time  subsequent  to  the  award.  The  Gas  companies 
of  Melbourne  and  suburbs  offered  several  concessions, 
including  a  higher  basic  rate  all  round,  and  (at  my 
instance)  higher  secondary  rates,  and  a  weekly  hiring 
instead  of  a  daily  hiring.  But  the  union  insisted  on 
a  still  higher  basic  rate,  and  struck  for  it  in  Melbourne. 
The  rate  granted  in  December  exceeded  that  to  which 
the  official  statistics  then  pointed ;  and  the  rate  offered 
in    May   exceeded    it    still    further.      Most    of    the 


FOR  LAW  AND  ORDER  85 

employers  who  are  parties  to  the  dispute  in  the  other 
States  are  municipalities  who  supply  gas  to  the 
residents ;  and  any  rates  that  wealthy  companies  may 
safely  grant  must  react  severely  on  the  small  muni- 
cipal undertakings.  The  union  held  out,  however, 
and  tried  to  get  a  special  "  tribunal "  created  by  the 
Premier  of  Victoria  to  decide  whether  the  men  should 
get  all  that  is  claimed  for  the  meantime,  and  not  only 
the  greater  part  of  it.  Of  course,  the  union  would 
like  a  special  tribunal  which  is  to  confine  its  attention 
to  the  difference  between  that  which  has  been  offered 
and  that  which  is  claimed.  It  would  stand  no  risk 
of  losing,  and  it  might  gain  something  more — even 
as  a  bee,  taking  all  that  it  can  get  from  one  flower, 
passes  on  to  the  next.  Such  is  the  result  of  letting 
men  cherish  hopes  of  a  supplementary  tribunal, 
which,  in  order  to  get  temporary  relief  for  the  public, 
is  constrained  to  yield  anything  that  will  put  an  end  to 
the  strike — and  thereby  foments  more  strikes.  The 
practice  of  creating,  or  purporting  to  create,  special 
tribunals  originated  with  the  Federal  Government  in 
the  coal  case  of  191 6;  and  the  gas  union  thought  it 
could  force  the  State  Premier,  as  the  Federal  Prime 
Minister  had  been  forced,  to  appoint  such  a  tribunal. 
But  fortunately  the  State  Premier  (Mr.  Lawson)  saw 
the  folly  of  the  course  proposed  (as  well  as  the  uncon- 
stitutionality), and  firmly  refused  to  comply  with  the 
union's  request ;  and  after  about  seven  weeks  of  strike 
the  men  have  just  returned  to  work  on  practically  the 
same  terms  as  had  .been  offered  before  the  strike. 
Certainly,  they  have  gained  nothing  that'  they  could 
not  have  gained  if  they  had  never  struck  work  at  all. 
All  the  suffering  which  they  inflicted  on  the  public  as 
well  as  on  their  own  families  has  failed  to  produce 


86  A  NEW  PROVINCE 

any  favourable  result.  It  has  been  a  sad  and  bitter 
lesson,  but  it  will  aid  the  methods  of  reason  as  against 
the  methods  of  force — of  strike.  The  union  wants 
now  to  have  the  whole  dispute  referred  to  the  Court. 

It  is  hardly  necessary  to  point  the  morals  to  be 
derived  from  the  facts  of  these  strikes.  An  employer 
is  unwise,  as  well  as  unjust,  if,  when  yielding  to 
strikers,  he  do  not  give  as  handsome  concessions  to 
those  whohave  not  struck.  Due  proportion  must  be 
maintained  between  the  several  ratings  or  classes  in 
any  one  industry,  and  indeed  between  different 
industries.  To  purchase  present  relief  from  strike 
pressure  by  tampering  with  the  balanced  system  of  the 
legitimate  tribunal  invites  further  strikes.  The  more 
you  yield  to  strikes,  the  more  strikes  there  will  be. 
It  is  not  only  illegal,  it  is  an  encouragement  of  strikes 
to  create  or  purport  to  create  a  special  tribunal  to  over- 
rule the  legitimate  tribunal.  "  Nothing  can  be  more 
injurious  to  the  steady  prosecution  of  the  industries 
required  by  the  public  than  to  concede  to  a  party 
dissatisfied  with  an  award,  a  new  tribunal  specially 
appointed  to  override  the  award,  or  even  to  decide  as 
to  the  propriety  of  the  award."  ^  An  Executive 
Government,  from  its  very  nature,  is  the  worst  arbiter 
or  intermediary  that  can  be  conceived  in  industrial 
disputes. 

2.  But  how  far  have  the  conditions  of  the  workers 
been  improved  by  the  Court  ? 

There  appeared  in  the  London  Times  weekly 
of  5th  March,  1920,  a  communication  from  a  special 
correspondent  in  Australia.     It  said : 

"  There   is   much   discontent,  too,   with   the   whole 

*  Waterside  Workers'  tribunal  case,  1920— not  yet  reported. 


FOR  LAW  AND  ORDER  87 

arbitration    system,   which    official    labour    roundly 
declares  to  be  a  failure." 

The  Registrar  brought  this  statement  under  the 
notice  of  Mr.  Grayndler,  the  General  Secretary  of  the 
Australian  Workers'  Union,  the  largest  union  in 
Australia,  the  union  which  has  been  the  backbone  of 
the  official  labour  movement,  and  Mr.  Grayndler  wrote: 

"  The  statement  in  the  London  Times  of  5th  March,  1920, 
viz. — 'that  there  is  much  discontent,  too,  with  the  whole 
arbitration  system,  which  official  labour  roundly  declares  to 
be  a  failure— is  quite  contrary  to  facts.  There  has  not  been 
any  such  declaration  by  ofticial  labour,  and  by  far  the  majority 
of  the  unions  of  Australia  favour  arbitration. 

"As  General  Secretary  of  the  Australian  Workers'  Union, 
by  far  the  largest  union  in  Australia,  comprising  102,000 
members,  I  can  say  that  my  union  is  a  strong  supporter  of 
the  arbitration  system.  Whatever  shortcomings  or  troubles 
that  exist  or  arise  are  due  to  the  limitation  of  the  Act  itself 
and  not  to  the  system.  Many  of  the  defects  in  the  Act  could 
be  remedied  by  legislation,  and  if  the  defects  were  removed 
or  the  powers  of  the  Court  enlarged  the  system  would  prove  a 
great  gain  to  the  nation  as  a  whole. 

"  The  unions  which  have  favoured  the  arbitration  system 
still  continue  to  do  so,  and  are  strongly  of  opinion  that  it  is 
infinitely  better  than  the  method  of  direct  action,  which,  after 
all,  very  few  of  the  unions  have  adopted. 

"  The  results,  however,  obtained  by  the  unions  which  have 
followed  the  arbitration  system,  during  the  last  ten  years, 
are  far  better  than  anything  gained  in  Australia  by  direct 
action.  .  .  ." 

This  statement  is,  at  the  least,  explicit.  The 
shearers  in  the  wool  industry  formed  the  original 
nucleus  of  this  union ;  they  are  piece-workers ;  and 
they  have  had  their  rates  raised  from  20s.  or  i8s.  6d. 
per  100  sheep  in  1907  to  30s.  per  100  in  1917;  and 
the  attendant  shed  hands,  cooks,  woolpressers,  etc., 
have  also  gained  proportionate  increases.  The  con- 
ditions of  living  and  working  for  these  seasonal 
workers  while  an  the  sheep  stations  have  been  made 
far  more  worthy  of  civilized  men.     As  for  the  per- 


88  A  NEW  PROVINCE 

manent  hands^the  "  station  hands,"  who  assist  the 
pastoraHsts  on  the  property  throughout  the  year, 
their  wages  have  been  Hfted  from  20s.  or  25s.  with 
keep  to  48s.  with  keep,  and  to  72s.  per  week  without 
keep  under  the  last  award. ^  Family  life  on  the 
station  has  been  encouraged  by  the  award ;  for  if  the 
employer  provide  a  residence,  etc.,  he  is  allowed  to 
deduct  the  value  from  the  wages.  The  value  has  to 
be  fixed  with  the  consent  of  the  union  or  of  a  board 
of  reference.  I  have  trustworthy  information  show- 
ing that  men  of  a  much  better  class  than  heretofore 
apply  for  employment  as  station  hands,  as  a  con- 
sequence of  the  new  conditions. 

This  union  has  under  its  shield  also  the  fruit 
pickers  and  others  who  work  in  the  orchards;  the 
wheat  lumpers ;  and  all  kinds  of  employees  who  work 
in  the  country ;  and  their  positions  have  been  much 
improved  by  the  Court. 

But  let  us  consider  the  advantages  gained  through 
the  Court  by  the  seamen,  firemen,  and  other  seafaring 
men — probably  the  most  helpless,  the  worst  treated 
of  all  workers.  Being  always  on  the  move,  always 
dispersed,  they  have  not  been  so  able  to  combine  as 
others  for  the  improvement  of  conditions.  The  A.B. 
seamen  have  had  their  rates  raised  by  the  Court  from 
£'^  per  month  in  191 1,  to  £12  5s.  per  month  in  igi8 — 
75  per  cent.,  and"  the  other  ratings  have  been  raised 
proportionately.  The  Court  has  applied  to  seamen, 
firemen,  engineers,  officers,  the  principle  of  the  eight 
hours'  day  at  sea  and  in  port — a  privilege  never 
previously  conceded  to  seamen,  I  understand,  in  any 
part  of  the  world.  Not  only  has  the  eight  hours' 
day  been  granted,  but  the  men  get  five  days  off  per 
^  Shearers'  case,  II.  C.A.R.  389. 


FOR  LAW  AND  ORDER  89 

month  (to  compensate  for  lost  Sundays  or  holidays), 
either  in  their  home  port  or  other  suitable  port.  For 
every  such  day  not  granted,  the  men  get  double  rates. 
They  also  have  gained,  from  the  Court,  annual  leave 
of  fourteen  days  per  annum  on  full  pay.  The  marine 
cooks  and  stewards  have  made  similar  gains  through 
the  Court,  although  their  hours  cannot  be  regulated 
on  exactly  the  same  lines. 

It  would  be  impossible,  without  a  long  and  laborious 
analysis  of  the  awards,  to  give  any  adequate  summary 
of  the  benefits  which  the  employees  have  obtained 
through  the  Court;  but  I  may  state  a  few  more 
which  occur  to  me.  When  the  Court  came  to  deal 
with  stokers  at  furnaces,  and  with  other  men  engaged 
in  continuous  processes,  these  men  had  to  work  seven 
days  per  week,  year  in,  year  out ;  now,  they  work 
only  six  days,  under  rotation  schemes.  Men  working 
in  retort  houses  now  get  a  week's  annual  leave  on 
full  pay.  In  clothing  factories  and  shops  girls  and 
women  have  had  their  hours  reduced  by  the  Court 
from  48  hours  to  44  per  week ;  and,  for  practical 
reasons,  the  men  have  to  enjoy  the  same  reduction. 
Females  get  the  same  minimum  rates  as  men,  when 
in  competition  with  them.^ 

Workers  are  allowed  to  form  such  associations  as 
they  think  fit.^  Full  craftsmen  are  protected  from 
unfair  competition  with  low  paid  machinists.^ 
Weekly  wages  have  been  substituted  for  daily  or 
hourly,  whenever  possible.^  Workers  have  to  be 
paid  for  all  time  of  duty,  whether  the  employer  has 

1  Fruit  case,  6  C.A.R.  61  ;   13  C.A.R.  171. 

2  Liquor  case,  12  C.A.R.  654. 
^  Coopers,  12  C.A.R.  439. 

*  Glass  Founders'  case,  12  C.A.R.  486 ;  Ship  Dockers,  12 
C.A.R.  623  ;  Gas,  13  C.A.R.  454  ;  Coopers,  12  C.A.R,  443. 


90  A  NEW  PROVINCE 

work  for  them  in  all  such  time  or  not.^  By  a  system 
of  averaging  their  actual  hours  of  employment  casual 
workers  get  a  full  living  wage ;  for  "  they  also  serve 
who  only  stand  and  wait."^  The  basic  or  living  wage 
is  computed  and  awarded  on  the  principle  that  a 
nqrmal  man  has  a  family  and  must  earn  sufficient  to 
support  it.  Nor  is  the  basic  wage  confined  to  the 
money  necessary  for  the  main  requisites  of  life — 
food,  shelter,  clothing;  it  allows  something  "  to  come 
and  go  on."  The  wage  is  based  on  civilized  condi- 
tions— '*  the  normal  needs  of  the  average  employee 
regarded  as  a  human  being,  living  in  a  civilized  com- 
munity." That  wage,  as  originally  granted  in  1907, 
lifted  the  standard  of  living  for  the  poor ;  and,  in  the 
recent  troublous  years,  it  has  followed  closely  the 
increase  in  the  cost  of  living.  Nor  is  the  gain  slight 
that  men  can  improve  their  working  conditions  with- 
out stopping  work  or  threatening  to  stop  it — without 
punishing  themselves  and  their  dependants,  and  the 
community. 

3.  Even  employers  are  at  last  beginning  to  recog- 
nize the  advantages  derived  from  the  existence  of  an 
impartial  tribunal,  such  as  the  Court,  so  far  as  it 
reduces  to  system  and  order  the  conditions  under 
which  human  life  can  be  used  for  the  purpose  of 
industry.  Recently,  the  Metropolitan  Gas  Company 
of  Melbourne  published  a  statement  as  to  the  value 
of  minimum  rates  of  wages  being  fixed  by  such  an 
authority — a  statement  which  would  certainly  not 
have  been  made  when  the  gas  employees  first  came 
before  the  Court,  when  the  company  did  all  it  could 
to  crush  the  infant  union  : 

^  Coopers,  12  C.A.R.  444. 

2  Waterside  Workers,  13  C.A.R.  603  ;  Ibid.  620. 


FOR  LAW  AND  ORDER  91 

"  It  must  be  apparent  that  employers  generally, 
and  the  controllers  of  public  utilities  in  particular, 
must  have  the  guidance  of  some  constituted  authority 
to  establish  rules  governing  the  fixation  of  the  basic 
wage,  and  that  once  a  principle  is  adopted  it  should 
be  adhered  to  until  some  better  method  is  found. 
...  It  has  been  claimed  by  the  worker  that  the 
Arbitration  Court  is  not  an  ideal  tribunal ;  but  it 
must  be  admitted  that  up  to  the  present  it  has  been 
of  inestimable  benefit  to  the  employees." 

Some  directors  of  big  undertakings,  such  as  the 
Metropolitan  Tramways  Trust,  have  actually  agreed 
to  vary  the  rates  from  time  to  time,  according  to  the 
system  adopted  by  the  Court.  Frequently — more 
frequently  than  ever  before,  and  as  to  other  condi- 
tions as  well  as  to  wages — the  union  and  the  em- 
ployers, after  a  study  of  the  system  adopted  by  the 
Court  in  analogous  cases,  make  an  agreement  with- 
out any  hearing,  and  the  agreement  is  certified  by 
the  Court  and  filed,  and  thereby  becomes  an  award. 
(Sec.  24.)  It  is  also  quite  common  now  for  the 
parties  to  ask  the  decision  or  guidance  of  the  Court 
on  a  few  main  subjects  in  dispute,  and  then  to  agree 
as  to  all  the  other  items — even  hundreds  of  items — 
in  the  light  of  the  Court's  findings,  anticipating  the 
application  of  the  Court's  principles.  For  instance, 
in  the  Clothing  case,^  there  were  485  employers 
respondents  to  the  plaint.  There  were  1,065  claims 
as  numbered  (many  more  if  the  sub-divisions  of  the 
claims  were  reckoned),  of  which  987  related  to  piece- 
work rates.  The  respondents  who  appeared  con- 
curred with  the  union  in  asking  the  Court  to  decide 
as  to  the  basic  rates  for  adult  males  and  for  adult 
female  workers — as  to  the  maximum  hours  of  work, 
1  13  C.A.R.  634. 


92  A  NEW  PROVINCE 

as  to  the  propriety  of  a  distinction  in  the  rates  for 
"  order  "  goods  and  for  "  chart  order  "  goods,  and  as 
to  two  or  three  minor  matters.  The  Court  acted  on 
the  request,  gave  its  decision,  and  the  parties  who 
appeared  signed  an  agreement  as  to  the  other  matters. 
Then  the  problem  arose  as  to  the  respondents  who 
had  neither  appeared  nor  signed.  The  Court  treated 
the  terms  to  which  the  signing  respondents  had  con- 
sented as  being  fair  terms  for  the  other  respondents 
also  (in  the  absence  of  evidence  to  the  contrary),  and 
awarded  to  the  same  effect  against  the  respondents 
who  had  not  signed.  A  similar  course  was  adopted 
in  the  case  of  the  Liquor  trade.  ^  Again,  as  to  the 
Pastoral  industry,  the  Court  had  made  an  award  in 
1917,  prescribing  rates  and  conditions  for  the  many 
hundreds  of  respondents  cited  by  the  Union.  As  it 
was  pointed  out  that  there  were  other  pastoralists 
who  had  not  been  cited,  the  union  undertook,  at  the 
instance  of  the  President,  to  make  similar  claims  as 
to  these  others.  When  this  was  done,  the  Court 
threw  on  the  second  set  of  respondents  the  burden 
of  showing  that  what  was  fair  for  the  first  set  would 
not  be  fair  for  themselves;  and  the  second  award 
was  made  to  the  same  effect  as  the  first.  ^ 

An  instance  of  standardizing  on  a  different  class 
of  subject  is  afforded  in  the  case  of  the  waterside 
workers.^  In  1915  the  Court  fixed  the  limit  of 
weight  for  bagged  ore  to  be  lifted  by  one  man  at 
I  cwt. ;  for  bagged  cargo  to  be  handled  by  one  man 
at  200  lbs. ;  for  cargo  on  a  truck  (one  man)  at  5  cwt. ; 
^  but  for  a  single  package,  6  cwt. ;  for  cargo  on  a  trolly 
(two  men)   at   15  cwt.     All  parties  now  concur  in 

i  13  C.A.R.  43. 

2  Pastoralists'  Anderson  case,  13  C.A.R.  364. 

3  g  CA.R.  293  ;  13  C.A.R.  614,  622. 


FOR  LAW  AND  ORDER  93 

approving  of  the  limitations  as  preventing  much 
friction ;  when  the  matter  came  before  the  Court 
again  in  1919,  none  of  the  parties  asked  for  any 
change;  and  the  Hmitations  are  accepted  even  where 
the  award  does  not  bind.  It  is  also  well  worthy  of 
notice  that  on  State  wages  boards  and  other  tribunals 
appeal  is  constantly  made  to  the  standards  prescribed 
by  the  Commonwealth  Court  and  to  the  reasoning  of 
this  Court  as  appearing  in  its  series  of  reports. 

Now  it  is  quite  true,  as  some  workers  say  (accord- 
ing to  the  Metropolitan  Gas  Company's  statement 
in  the  passage  quoted  above),  that  "the  Arbitration 
Court  is  not  an  ideal  tribunal."  It  could  be  made 
much  better,  more  beneficial  to  all  parties  and  to  the 
public,  if  Parliament  were  to  adopt  the  improvements 
which  are  recommended  by  experience.  I  mean  to 
refer  to  some  of  them  hereafter.  But  all  who  have 
experience  in  the  control  of  industries  will  recognize 
the  immense  advantage  it  is  to  the  working  of  the 
industries  to  have  definite  rules  laid  down  by  some 
constituted  authority  for  guidance — not  only  as  to 
the  basic  wage,  as  the  Gas  Company  stated,  but  as 
to  other  matters — always  provided  that  the  authority 
does  not  interfere  with  the  discretion  of  the  manage- 
ment rashly  or  stupidly. 

During  these  last  few  trying  years  Australia  has 
found  the  advantage  of  having  set  standards  as  to 
employment  in  industry,  of  having  a  tribunal  ready 
and  willing  to  apply  these  standards,  and  of  pro- 
viding a  means  whereby  employees  can  get  justice 
without  the  cruel  and  self-punishing  device  of  strike; 
for,  though  we  have  our  troubles,  we  have  been  free 
from  such  widespread  stoppages  and  disorders  as  have 
occurred  in  Great  Britain  and  in  America. 


94  A  NEW  PROVINCE 

Minimum  Rates. 

As  I  have  explained  in  the  previous  articles,  the 
Court  fixes  the  minimum  rate  by  first  finding  what  is 
called  the  "  basic  wage  " — the  reasonable  living  wage 
for  an  ordinary  adult  labourer — and  then  adding  the 
**  secondary  wage  " — the  additional  sum  that  in  prac- 
tice is  paid  to  a  man  for  the  skill  or  other  exceptional 
necessary  qualifications  of  his  class. 

In  finding  the  basic  wage  the  Court  uses  a  rough 
estimate  which  it  made  in  an  inquiry  in  1907  as  to 
"  fair  and  reasonable  remuneration;"^  and  the  Court 
varies  the  7s.  per  day,  42s.  per  week,  as  then  esti- 
mated, in  the  ratio  that  the  cost  of  living  has  increased 
since  1907.  For  instance,  if  it  now  takes  30s.  to  pur- 
chase as  much  as  could  be  purchased  in  1907  for 
17s.  6d,,  the  basic  wage  is  found  by  this  formula : 

17s.  6d.     :     30s.     ::     7s.     :     I2S. 

The  latest  figures  for  Australia,  as  a  whole,  seem  to 
give  I2S.  9d.  per  day,  76s.  6d.  per  week,  nearly  ;£"200 
per  annum ;  but  the  trend  of  the  cost  of  living  is  still 
upwards.  Effect  is  given,  as  far  as  possible,  to  the 
differences  in  the  cost  of  living  in  different  localities. 

The  estimates  of  the  Cornmonwealth  Statistician 
as  to  the  variations  in  the  purchasing  power  of  money 
are  made  on  scientific  lines ;  and  although  often 
attacked  on  both  sides  by  men  who  keep  their  minds 
fixed  on  the  variations  of  some  specific  commodities, 
such  as  clothing,  they  have  always  stood  every  test. 

But  there  is  no  doubt  that  the  rough  estimate  made 
by  the  Court  in  T907  ought  to  be  superseded  or  re- 
vised by  a  new  investigation  made  after  so  many 
1  2  C.A.R.  I. 


FOR  LAW  AND  ORDER  95 

years  have  elapsed  as  to  the  absolute  present  cost 
of  living.     I   had  hoped — and  suggested — that  the 
Government  would  see  fit  to  commit  the  investiga- 
tion to  the  Commonwealth  Statistician  and  his  staff, 
as  they  would  handle  the  subject  coldly  and  impar- 
tially, aided  by  their  experience  and  facilities.     But 
the  Government  has  seen  fit  to  entrust  the  ascertain- 
ment of  a  fit  basic  wage  to  a  Commission  consisting 
of  some  representatives  of  the  employers,  and  some 
representatives  of  the  employees,  with  a  distinguished 
lawyer  as  Chairman.     Such  an  inquiry,  in  such  an 
atmosphere,    must    inevitably   elicit    evidence   of   a 
rambling  kind  on  both  sides ;  and  representatives  tend 
to  become  partisans.    But  we  must  hope  for  the  best. 
The  basic  wage  is  to  be  fixed  on  family  lines,  on 
the  assumption  that  the  male  adult  worker  has  to 
support  himself,  a  wife,  and  three  dependent  children. 
This  is  in  accordance  with  the  assumption  of  the 
Court  in  1907 ;  and  it  is  also  in  accordance  with  the 
United   States   Bureau   of    Labour   and   Statistics, 
December,  1919.     Mr.  Seebohm  Rowntree,  in  Eng- 
land, in  his  thoughtful  study  of  the  subject,  "  The 
Human  Needs  of  Labour,"  has  worked  on  the  same 
lines.     He  says,  as  to  the  families  of  all  classes  in  the 
City  of  York,  that  "  if  we  were  to  base  minimum 
wages  on  the  human  needs  of  families  with  less  than 
three  children,  80  per  cent,  of  the  children  of  fathers 
receiving  the  bare  minimum  wage  would  for  a  shorter 
or  longer  period  be  inadequately  provided  for,  and 
72  per  cent,  of  them  would  be  in  this  condition  for 
five  years  or  more."    He  even  recommends  a  scheme 
whereby  the  States  should  supplement  the  minimum 
in  the  case  of  larger  families.    The  Deputy  President, 
Powers,  J.  (now  resigned),  has  made  a  recommendation 


96  A  NEW  PROVINCE 

recently  to  the  same  effect.^  But  in  determining  the 
duty  of  the  employer  to  his  employee  the  Court  does 
not  compel  a  basic  wage  calculated  on  more  than 
three  dependent  children. 

It  has  been  urged — and  fairly — that  if  the  workers 
are  never  to  get  an  increase  in  wages  unless  the  cost 
of  living  rises  and  in  proportion  to  the  increase  in 
the  cost,  they  never  get  an  improvement  in  their 
real  wages  at  all — wages  as  represented  by  the  com- 
modities purchasable  therewith.  Of  course,  it  is  in 
itself  a  great  disadvantage  that  by  the  system  of 
increasing  the  money  wages  in  proportion  to  the 
increase  in  the  cost  of  living,  the  standard  of  life  is 
not  lowered — is  maintained  throughout  these  critical 
years.  The  increase  in  wages  made  by  the  Court  is 
far  greater  and  steadier  than  could  have  been  achieved 
by  strikes.  But  the  Court  has  done  more.  By^ 
curious  piece  of  good  fortune,  the  standard  of  life 
was  actually  raised  at  the  beginning,  before  the  appli- 
cation of  the  Statistician's  figures ;  and  the  raised 
standard — not  the  previous  standard — has  been  up- 
held in  the  long  series  of  awards.  For  the  very  first 
case  that  came  before  the  present  President  was  a 
special  enquiry  in  which  the  President  had  to  decide 
(for  the  purpose  of  an  Excise  Tariff  Act)  whether 
certain  manufacturers  were  giving  "  fair  and  reason- 
able remuneration  "  to  their  employees  ;  and  he  had 
to  make  up  his  mind  what  was  fair  and  reasonable. 
His  conclusion  was  that  a  wage  of  7s.  per  day,  42s. 
per  week,  was  the  least  wage  that  would  be  sufficient 
for  wholesome  living  in  Melbourne,  and  the  manu- 
facturers were  not  paying  so  much.  The  wage  at  the 
time  for  the  labourer  was  5s.  or  6s.  per  day.  I  think 
1  Metalliferous  mining,  13  C.A.R.  550,  559,  572. 


FOR  LAW  AND  ORDER  97 

that  I  am  close  to  the  mark  when  I  say,  even  for  men 
in  regular  work,  the  average  wage  was  not  more  than 
5s.  6d.  per  day,  33s.  per  week.  This  would  mean  that 
the  standard  was  raised  by  over  27  per  cent,  in 
1907 ;  and  this  raised  standard  has  been  preserved  in 
the  succeeding  awards,  which  prescribed  increases 
proportionate  to  the  increase  in  the  cost  of  living. 

The  system  is  now,  apparently,  universally  accepted 
as  just  and  proper.  It  will  amuse  some  of  my  readers 
to  know  that  the  Court  was  for  some  years  the  target 
for  numerous  attacks  on  the  ground  that  the  Court 
was  itself  the  wicked  cause  of  the  increase  in  the  cost 
of  living.  Worried  housewives  were  diligently  in- 
structed by  certain  journals  that  the  Court  was  to 
blame.  They  were  also  taught  the  "  vicious  circle  " 
theory — the  fallacy  that  an  increase  of  wages  is  no 
real  benefit  to  the  worker — that  (for  instance)  an  in- 
crease in  the  wages  of  a  worker  in  motor-car  bodies 
involves  an  equivalent  increase  in  the  price  of  his 
bread  and  meat.  But  since  it  became  generally  known 
that  the  cost  of  living  has  risen  in  other  countries  as 
well  as  in  Australia — indeed,  much  higher  than  in 
Australia — there  seems  to  be  silence  at  last  on  this 
subject  of  the  wickedness  of  the  Court. 

Secondary  Wage. 

But  the  secondary  wage — defined  as  above — has  to 
be  added  to  the  wage  suitable  for  the  unskilled 
labourer.  The  Court  holds  that  the  inducement  to 
acquire  the  extra  skill  of  the  artisan  must  be  main- 
tained. For  the  purpose  of  ascertaining  the  secondary 
wage,  the  Court  looks  to  the  margin  allowed  for  the 
special  calling  in  practice  before  regulation ;  and  both 

7 


98  A  NEW  PROVINCE 

employers  and  employees  willingly  acquiesce  in  this 
system. 

During  the  violent  financial  upheaval  caused  by 
the  Great  War,  and  because  of  the  widespread  un- 
certainty as  to  what  would  follow,  the  Court  has  not 
increased  the  secondary  wage  in  proportion  to  the 
increased  cost  of  living;  it  has  merely  maintained 
the  same  absolute  margin.^  True,  the  additional 
commodities  to  which  the  skilled  worker  is  entitled 
have  increased  in  price  also ;  but  they  are  not  so 
absolutely  essential  as  the  commodities  necessary  for 
wholesome  living.  Now  that  the  war  has  ended,  the 
question  arises  whether  this  cautious  and  conserva- 
tive course  should  still  be  followed  ;  but  as  the  sub- 
ject is  to  be  discussed  at  an  early  date  I  refrain  from 
further  comment. 

Minimum  Rates  and  Scarcity  of  Labour. 

In  fixing  minimum  rates,  the  Court  refuses  to  pre- 
scribe such  rates  as  a  temporary  scarcity  of  the  class 
of  artisans  or  others  enables  the  men  to  secure.  For 
instance,  fully  qualified  coopers  are  scarce — for  various 
reasons;  and  high-class  breweries  are  willing  to  give 
coopers  higher  wages  than  the  system  adopted  by 
the  Court  would  justify  as  a  minimum — that  is  to 
say,  the  basic  rate  with  the  addition  of  the  appro- 
priate secondary  wage  for  training  and  skill.  This 
seems  to  be  a  proper  case  for  the  play  of  the  forces  of 
demand  and  supply.  If  the  rates  due  to  a  temporary 
scarcity  were  to  be  prescribed  as  the  minimum  rate, 
there  would  be  unrest  produced  among  the  artisans 
of  the  same  grade  as  to  whom  there  is  not  such  scar- 

1  Merchant  Service  Guild,  lo  C.A.R.  214. 


FOR  LAW  AND  ORDER  99 

city ;  and,  when  normal  times  return,  there  would  be 
complications  also  in  the  employment  even  of  coopers.^ 
As  stated  in  the  Waterside  Workers'  case,^  a  mini- 
mum rate  **  means  the  least  rate  which  the  employer 
shall  be  allowed  to  pay,  on  pain  of  a  penalty,  whatever 
the  state  of  the  market  for  labour,  or  the  need  of  the 
employee  for  work,  whatever  his  efficiency  and  what- 
ever the  circumstances — agreeable  or  disagreeable." 
This  does  not  prevent  the  Court,  however,  from  pre- 
scribing, or  creating  machinery  for  fixing,  a  lower 
rate  for  workers  who  are  old  or  infirm-:n-in  obedience 
to  s.  40  (i)  (b)  of  the  Act. 

A  similar  problem  arose  in  the  case  of  seafaring 
men  of  various  ratings.  Owing  to  the  risk  from  sub- 
marines, and  other  causes  which  I  have  already  men- 
tioned, the  rates  offered  to  these  men  in  other 
countries  were  hugely  enhanced ;  and  the  Australian 
seamen  and  firemen  claimed  in  1918  50  per  cent, 
increase  in  their  minimum  rates.  The  Court  refused 
to  depart  from  its  systematic  standard  for  the  mini- 
mum, but  suggested  the  offer  of  a  bonus  under  the 
exceptional  circumstances : 

"  It  may  be  that  the  Australian  ship-owners  may 
have  to  outbid  America  by  the  grant  of  bonuses  or 
otherwise,  in  order  to  retain  seafaring  men  now 
settled  in  Australia.  It  is  obviously  no  more  an 
offence  for  an  Australian  seaman  to  ship  from  non- 
Australian  ports  in  order  to  get  the  benefit  of  the 
higher  wages  than  it  is  an  offence  for  a  merchant  to 
sell  his  goods  in  the  highest  market."^ 

But  the  suggestion  was  not  heeded.  The  Govern- 
ment had  many  ships  of  its  own,  and  had  nearly  all 

1  Coopers,  12  C.A.R.  427.  2  13  c.A.R.  608. 

3  Seamen,  12  C.A.R.  756-757. 


100  A  NEW  PROVINCE 

the  interstate  ships  under  charter.  It  did  nothing, 
and  allowed  things  to  drift  to  the  strike  to  which  I 
have  already  referred. 

Offensive,  etc.,  Jobs. 

Closely  allied  to  this  subject  is  the  subject  of 
attempts  made  by  unions  to  get  extra  minimum  rates 
prescribed  on  the  ground  of  the  job  being  dirty  or 
offensive,  or  risky  to  life  or  health.  I  have  dealt  with 
this  matter  in  both  the  previous  articles,  and  I  do 
not  want  to  repeat  myself.  But  the  position  taken 
by  the  Court  is  well  illustrated  by  a  recent  case  as  to 
gas-works  employees.  Time  and  a  half  rates  were 
claimed  for  *'  men  demolishing  retort  benches  in  close 
proximity  to  hot  retorts,"  for  "  coal  trimmers  in  fiery 
bunkers,"  for  boiler  cleaners.  Extra  pay  was  asked 
also  for  men  working  in  dust  or  fumes,  for  men 
cleaning  acid  tanks,  for  men  working  at  a  height  of 
20  feet  (6d.  more  per  day),  of  40  feet  (is.  more 
per  day),  of  100  feet  (is.  6d.  more  per  day),  and  for 
men  working  over  a  permanent  floor  or  staging  less 
than  6  feet  wide — whatever  the  other  circumstances. 
The  Court  said : 

"  The  risks  involved  may,  of  course,  enter  into  a 
bargain  for  rates,  but  they  are  not  to  be  considered 
in  fixing  minimum  rates.  Nor  is  it  well,  in  the 
interests  of  the  community,  that  employers  should 
be  encouraged  to  think  that  the  Court  sanctions  the 
putting  of  human  life  in  danger  if  certain  extra  rates 
be  paid.  Such  rates  encourage  slovenly  management, 
and  indifference  to  the  men's  safety.  It  would  be 
much  better  for  the  union  to  ask  for  some  regulating 
conditions  which  would  prevent  or  diminish  the  risks 
involved.    If  such  regulating  conditions  are  impractic- 


FOR  LAW  AND  ORDER  loi 

able,  it   might  be  more  appropriate   to   ask   for   a 
reduction  of  hours  than  for  an  increase  of  wages."^ 

It  was  shown  that  a  Victorian  Wages  Board  had 
prescribed  a  higher  rate  for  men  working  at  a  tempera- 
ture of  130°  F.  This  had,  at  all  events,  the  merit  of 
definiteness — a  merit  which  the  union's  claim  had 
not.  But  it  left  the  men  working  at  129°  or  125°  F- 
to  the  ordinary  rate ;  it  would  tend  to  raise  disturbing 
contrasts,  and  provoke  unrest. 

Excessive  Men. 

The  Court  refuses  to  grant  claims  made  for  an 
unnecessary  number  of  men  for  a  job,  where  the  object 
of  the  claim  is  merely  to  reduce  unemployment.  For 
instance,  the  Waterside  Workers  claimed  that  there 
should  be  six  truckers  at  every  hatch,  six  men  in  the 
hold  or  on  deck  of  every  vessel,  two  stackers  and  two 
gangway  men  for  each  hatch.  Admittedly,  the  object 
was  to  compel  the  owners  to  employ  more  men ;  but 
more  men  were  not  usually  necessary — in  some  cases 
they  could  not  even  be  used.  The  Court  cannot 
solve  the  problem  of  unemployment  in  this  way.  It 
is  not  fitted  to  manage  a  business  concern,  and  will 
not  interfere  with  the  discretion  of  the  employer  as 
to  the  speed  at  which  he  wants  to  get  his  work  done.^ 

Weekly  Hiring — Casual  Employment. 

The  Court  holds  that  hiring  by  the  day  is  better 
than  hiring  by  the  hour ;  and  that  hiring  by  the  week 
is  better  than  hiring  by  the  day — wherever  practicable.^ 
Weekly  wages  fit  in  better  with  considerations  of 

^  Gas,  13  C.A.R.  455-456. 

2  Waterside  Workers,  13  C.A.R.  614-615. 

^  Ship  Dockers,  12  C.A.R.  628  ;  Gas,  13  C.A.R.  454. 


102  A  NEW  PROVINCE 

subsistence,  and  tend  to  greater  steadiness  in  the 
prosecution  of  the  work  required  by  the  community. 
Casual  work,  at  hourly  hiring,  involves  much  waste 
of  time  and  available  human  energy,  and  is  injurious 
to  the  morale  and  physique  of  the  workers.  I  have 
referred  in  both  the  previous  articles  to  the  case  of 
the  waterside  workers,  hired  by  the  hour.  These 
men,  it  is  held,  served  the  employer  and  the  public, 
not  only  by  actual  work,  but  by  waiting  in  readiness 
for  the  ships  to  come ;  and  they  must  be  provided 
with  a  living  wage.  To  be  more  definite,  the  Court 
sets  itself  to  find,  as  well  as  it  can,  the  average  receipts 
of  the  average  man — the  man  of  average  competence, 
who  takes  work  in  this  industry  and  in  no  other,  who 
works  or  seeks  work  every  day  at  the  wharves.  Having 
found  that  he  averaged  thirty  hours  per  week,  the 
Court  prescribed  2S.  3d.  per  hour,  which  means 
67s.  6d.  per  week,  for  thirty  hours'  actual  work.^ 

This  is  as  near  as  the  Court  can  go  to  a  weekly 
wage  for  this  average  man.  There  is  as  yet  no  sign 
of  organization  among  the  employers  such  as  would 
give  full  time  of  work  every  day  at  weekly  wages. 
The  principal  difficulty  arises  from  the  needs  of  over- 
sea ships,  as  there  are  long  intervals  between  their 
visits  to  our  ports. 

Piecework  v.  Timework. 

Some  unions  will  not  submit  to  piecework  at  any 
price;  some  insist  on  piecework.  Some  theorists 
fancy  that  piecework,  with  its  higher  rates  for  greater 
speed  of  output,  is  a  solution  for  all  labour  difficulties ; 
but  they  are  mistaken.  The  matter  was  elaborately 
discussed  in  a  dispute  between  the  Amalgamated 
*  Waterside  Workers,  13  C.A.R.  604,  606, 


FOR  LAW  AND  ORDER  103 

Society  of  Engineers  and  the  Commonwealth  Govern- 
ment.^ The  Prime  Minister,  being  anxious  to  get 
ships  built  at  the  greatest  speed  in  the  exigencies  of 
the  war,  insisted  that  every  union  concerned  in  his 
shipbuilding  scheme  should  agree  to  submit  to  piece- 
work if  required,  or  be  excluded  from  employment. 
This  union  refused  to  make  such  an  agreement,  and 
brought  the  dispute  before  the  President.  The 
Court  held  that  the  refusal  was  justified.  The  expert 
managers  of  the  shipyards  admitted  that  they  did 
not  want  to  put  men  of  this  occupation  on  piecework 
rates;  they  knew  piecework  to  be  inappropriate  in 
such  an  occupation,  where  there  is  little  or  no  repeti- 
tion work,  and  the  worker  has  to  apply  his  mind  afresh 
from  job  to  job.  On  the  other  hand,  the  Court  refused 
to  interfere  with  piecework  rates,  refused  to  award 
timework  in  the  place  of  piecework,  in  the  case  of 
coal  lumpers.  It  will  hardly  be  believed  in  other 
countries  that  mechanical  appliances  have  not  yet 
been  substituted  for  human  labour,  in  a  port  so  im- 
portant as  Melbourne,  for  the  dirty  and  monotonous 
carrying  of  coal  in  bags  into  and  from  ships.^  In  the 
case  of  wheat  lumpers  on  piecework  rates,  it  was 
prescribed  that  the  receipts  from  piecework  were  not 
to  be  less  than  one  and  a  quarter  times  as  much  as 
timework  rates.^  In  the  case  of  the  coopers  the 
union  sought  to  prohibit  piecework.  It  appeared 
that  many  of  the  members  desired  piecework  for  the 
easier  operations;  whereas  in  many  breweries  the 
employers  preferred  timework,  as  it  meant  greater 
care  in   the  production  of  the  casks.    The  Court 

1  12  C.A.R.  386. 

2  Waterside  Workers,  13  C.A.R.  615. 

3  Wheat,  13  C.A.R.  814. 


104  A  NEW  PROVINCE 

adopted  the  device  of  committing  to  the  appropriate 
board  of  reference  the  function  of  determining 
whether  piecework  should  be  allowed  and  for  what 
operations  and  in  what  places,  and  what  the  rates 
should  be.^  This  is  one  of  the  numerous  cases  in 
which  it  would  be  expedient  for  the  Court  to  have 
power  to  create  a  shop  committee  for  each  undertaking. 

Need  for  Power  to  Appoint  Shop 
Committees,  etc. 

It  is  not  possible,  in  an  article  of  this  kind,  to 
state  even  a  tithe  of  the  problems  which  are  presented 
to  the  Court,  still  less  to  state  the  solutions  which 
have  been  reached.  I  can  only  refer  those  who  may 
wish  for  more  specific  information  to  our  annual  re- 
ports. They  will  see,  for  instance,  in  the  Gas  case, 
193  different  classes  of  occupations  to  be  dealt  with, 
and  547  items  in  dispute — all  to  be  considered.  But 
I  desire  to  say  something  on  general  subjects,  such  as 
shop  committees,  compulsion  in  arbitration,  defects  in 
the  Act,  special  tribunals. 

Frequently  in  disputes  the  union  makes  a  claim 
which  involves  a  dispute  extending  beyond  one  State, 
but  which  cannot  be  determined  justly  or  fitly  by 
imposing  one  common  rule  for  all  the  undertakings 
concerned.  For  instance,  in  the  Gas  case^  it  was 
claimed  that  when  retorts  are  charged  by  means  of 
scoops  or  hand  shovels  the  maximum  number  of 
retorts  to  be  drawn  or  charged  in  a  shift  should  be 
twelve.  Now  it  is  the  clear  duty  of  the  Court  to 
endeavour  to  secure,  where  there  is  an  appropriate 
dispute  on  the  subject,  that  human  powers  must  not 
be  overtaxed ;  but  such  a  regulation  as  claimed  cannot 
*  Coopers,  12  C.A.R.  443.  *  13  C.A.R.  457. 


FOR  LAW  AND  ORDER  105 

be  justly  made  by  an  Australian  Court  for  all  gas- 
works under  all  conditions.  The  work  is  trying  at 
all  times  ;  but,  though  twelve  may  be  a  proper  maxi- 
mum in  the  case  of  old  and  defective  retorts,  it  is  not 
a  proper  maximum  in  all  cases.  If  there  is  to  be 
regulation  of  the  number  of  retorts  to  be  charged,  if 
the  discretion  of  the  manager,  pnmd  facie  autocratic, 
is  to  be  limited,  the  regulation  should  be  made  by 
some  man  or  men  having  the  particular  work  in  sight 
for  the  time  being.  As  to  such  a  matter  (not  as  to 
all  matters)  there  is  much  force  in  the  statement 
attributed  to  a  Minister  that  the  tribunal  should  be 
local;  but  he  does  not  realize  the  limitation  of  the 
Constitution  or  of  the  Act ;  he  does  not  see  that  under 
present  ciicumstances  there  can  be  no  system  of  local 
tribunals,  except  so  far  as  the  power  to  appoint  a 
board  of  reference  can  be  applied.  In  such  a  case  as 
this,  a  power  to  appoint  a  shop  committee  would  be 
most  useful ;  but  the  Government  does  not  ask  Parlia- 
ment to  give  the  Court  such  a  power.  The  Court 
has  therefore  been  compelled  to  make  such  use  as  it 
can  of  its  power  to  appoint  a  board  of  reference 
(s.  40A) — a  power  which  is  most  unsatisfactory  (as 
explained  in  Article  II.),  but  which  has  been  made 
use  of  where  possible,  long  before  the  Whitley  Report 
of  1917  was  published  in  Great  Britain,  The  em- 
ployers in  this  case  strongly  opposed  the  conferring 
of  such  authority  on  a  board  of  reference.  Their 
main  fear  was,  as  expressed  "  lest  the  board  should 
decide  managerial  matters  that  ought  to  be  left  to 
those  responsible  for  the  administration." 

Now,  this  subject,  the  participation  of  employees 
in  matters  of  management  of  an  undertaking,  is  sure 
to  be  prominent  in  all  coming  years;  and  it  needs 


io6  A  NEW  PROVINCE 

careful  consideration  in  all  aspects.  Lord  Leverhulme 
has  dealt  with  it  cautiously  but  sympathetically. 
Mr.  John  D.  Rockefeller,  junior,  another  great  em- 
ployer, has  expressed  himself  as  being  in  favour  of 
the  representation  of  employees  in  industries.  Mr. 
Justice  Sankey  and  the  three  independent  Govern- 
ment nominees  on  the  Coal  Mines  Commission  in 
Great  Britain — at  a  time  when  they  were  not  prepared 
to  recommend  nationalization — said : 

"  We  are  prepared,  however,  to  report  now  that  it 
is  in  the  interests  of  the  country  that  the  colliery 
worker  shall  in  the  future  have  an  effective  voice  in 
the  direction  of  the  mine." 

So  the  matter  has  been  lifted  out  of  mere  abstract 
speculation ;  but  employers  in  Australia  do  not  seem 
to  recognize  the  growth  of  the  movement  towards 
some  share  in  the  responsibilities  of  management. 
Mr.  John  Dewey,  in  the  New  Republic  (May  5, 
1920),  seems  to  me  to  hit  a  point  of  vital  danger 
when  he  says  that  the  success  in  the  movement  for 
better  wages  strengthens  "  the  power  of  wage-earners 
to  make  demands  for  a  still  larger  share  in  material 
products  without  creating  among  them  a  feeling  of 
responsibility  for  industry  itself."  They  should  share 
the  responsibility  for  the  continuity  and  success  of 
the  industry.  They  should  have  "  freedom  to  par- 
ticipate in  its  (the  industry's)  planning  and  conduct." 
Let  them  be  in  a  position  to  *'  exercise  their  minds  in 
connection  with  their  daily  occupations."  In  my 
opinion,  there  can  be  no  stable  equilibrium  in  the 
present  position — "Here  is  your  work;  there  are 
your  wages  ;  it  is  not  your  business  to  discuss  to  what 
work  you  are  to  apply  your  powers."     The  position 


FOR  LAW  AND  ORDER  107 

which  the  Court  takes  up  is  indicated  in  the  case  of 
the  Marine  Engineers : 

"  I  attach  great  importance  to  proper  boards  of 
reference  for  industries.  They  allow  the  discussion 
of  grievances ;  they  enable  the  employers  to  see  the 
difficulties  of  employees,  and  employees  to  see  the 
difficulties  of  employers  ;  they  supply  to  some  extent 
the  crying  want  of  our  modern  industrial  system — 
the  absence  of  co-operation  between  the  management 
and  the  employees.  They  often  remove  causes  of 
friction  before  serious  industrial  trouble  arises.  Some 
day  it  will  be  a  matter  of  amazement  when  men  look 
back  on  our  times,  and  see  what  a  wealth  of  experi- 
ence is  rejected  in  the  working  of  industries.  Under 
the  stress  of  war,  in  Great  Britain,  there  are  being 
developed  industrial  councils  of  all  kinds,  councils  at 
which  employees  meet  the  management  on  equal 
terms  for  the  discussion  of  the  common  problems  of 
the  industry;  and  these  boards  of  reference  should 
fulfil  similar  functions."^ 

Unfortunately,  boards  of  reference  do  not  com- 
pletely "fill  the  bill."  There  is  need  of  shop 
committees,  as  elsewhere  suggested  by  the  Court  ^^ 
but  there  is  no  indication  that  the  Government  has 
even  considered  the  suggestion. 

The  provision  as  to  boards  of  reference  has  been 
also  applied  to  problems  arising  in  connection  with 
waterside  workers.  These  casuals,  employed  by  the 
hour,  naturally  expect,  under  certain  circumstances, 
to  be  offered  higher  rates  than  the  minimum  pre- 
scribed, as  an  inducement  to  undertake  the  work. 
For  example,  a  vessel  arrived  with  her  hold  steamy 
and  offensive — the  vessel  having  been  submerged 
after  a  fire,  and  the  cargo  of  linseed  and  jute  having 

^  12  C.A.R.  68i.  2  13  C.A.R.  681. 


io8  A  NEW  PROVINCE 

rotted.  Another  vessel  arrived  on  which  there  had 
been  virulent  influenza.  In  each  case  there  was  need 
for  speed  in  discharging,  but  delay  occurs  if  there  is 
to  be  haggling  as  to  the  wages.  The  Court  has  pro- 
vided that  men  who  proceed  forthwith  with  the  work, 
leaving  the  rates  to  be  settled  by  the  union  official 
and  the  foreman,  or,  if  they  differ,  by  the  board  of 
reference,  shall  be  paid  the  rates  so  settled.  So  far, 
the  provision  seems  to  work  well.  The  work  required 
by  the  country  proceeds  pending  the  decision.^ 

Compulsion  in  Arbitration. 

From  our  Australian  point  of  view,  the  objections 
so  fiercely  urged,  in  America  and  in  Great  Britain,  to 
compulsory  arbitration  appear  to  be  fanciful  and 
irrelevant.  Compulsion  may  be  applied  at  either  of 
two  points — compulsion  to  submit  to  arbitration 
before  strike,  and  compulsion  to  obey  the  award.  I 
do  not  know  how  far  compulsion  goes  in  the  Nor- 
wegian Act,  or  in  the  recent  statute  of  Kansas ;  but, 
so  far  as  I  understand  from  a  journalistic  statement 
as  to  the  effect  of  a  Bill  laid  on  the  table  of  the 
French  Chamber  of  Deputies,  it  is  the  former  kind 
only  of  compulsion  that  is  proposed  to  be  applied 
in  France,  even  in  the  case  of  gas  and  other  public 
utilities.  I  may  be  wrong,  as  I  have  not  seen  the 
Bill.  Under  the  Australian  Act,  both  kinds  of  com- 
pulsion are  applicable ;  and  no  voices,  so  far  as  I 
know,  are  now  raised  against  either.  Regulation  by 
tribunals  of  some  sort  is  accepted;  it  is  welcomed 
especially  by  the  unions — the  great  majority  of  the 
unions.    In  the  next  place,  while  it  is  quite  true  that 

*  Waterside  Workers,  13  C.A.R.  610-621. 


FOR  LAW  AND  ORDER  109 

well-drawn  collective  agreements  would  be,  as  to 
most  subjects,  preferable  to  awards,  it  is  generally 
impossible  to  get  such  agreements.  Sometimes  there 
are  thousands  of  respondents,  often  hundreds;  many 
put  in  no  appearance  and  will  make  no  agreement. 
Even  among  the  respondents  who  do  appear,  there 
are  many  who  will  dissent  from  certain  proposals. 
If  the  Court  has  no  compulsory  power  at  all,  it  must 
very  often  wait  in  vain  for  universal  consent.  There 
will  either  be  no  agreement  at  all,  or  the  agreement 
must  be  on  the  lines  dictated  by  the  most  obstinate. 
With  compulsion  in  the  background,  the  agreement 
will  be  on  the  lines  which  the  reasonable  employers 
favour.  Under  the  Act,  the  first  duty  of  the  Court 
is  to  try  to  get  agreement ;  and,  only  if  and  so  far  as 
it  cannot  get  agreement,  to  award.  The  ideal  of  the 
Court  is  to  get  such  a  regulation  as  the  parties  ought 
to  put  in  a  collective  agreement ;  and  compulsion 
means  merely  that  as  to  claims  on  which  the  parties 
cannot  agree,  or  as  to  which  some  of  the  parties  will 
not  agree,  the  Court  can  make  an  award.  Very  often,- 
the  mere  fact  that  the  Court  has  a  power  of  compul- 
sion in  reserve  impels  the  parties  to  find  a  line  of 
agreement;  and  reasonable  employers  are  more 
willing  to  make  concessions  when  they  feel  that  their 
competitors  are  to  be  bound  by  the  same  terms.  In 
the  analogous  matters  of  protecting  workers  from 
dangerous  machinery,  of  providing  compensation  for 
accidents,  of  limiting  the  hours  for  children's  work, 
there  could  have  been  no  relief  if  the  workers  had 
to  wait  for  universal  agreement  on  the  subject;  and 
legislators  have  had  to  make  such  matters  the  subject 
of  direct  coercive  enactment. 

Moreover,  as  stated  in  Article  II.,  the  dread  ex- 


no  A  NEW  PROVINCE 

pressed  by  certain  theorists  that  compulsion  would 
end  in  "  a  servile  State  " — a  State  in  which  the 
workers  would  be  compelled  to  work  in  return  for 
certain  guarantees  as  to  conditions — is  unfounded,  so 
far  as  our  experience  goes.  It  has  been  established 
here  that  a  worker  is  not  compelled  to  take  work, 
any  more  than  an  employer  is  compelled  to  give 
work.  From  the  nature  of  the  case,  the  compulsion 
of  an  award  is  nearly  always  exerted  on  the  em- 
ployers. For  as  the  employers  have  had,  until  lately, 
by  far  the  stronger  economic  position  for  bargaining, 
the  employers  do  not  (except  very  rarely)  seek  the 
protection  of  the  Court.  The  employees  seek  it, 
and  take  good  care  not  to  claim  protection  against 
themselves. 

Defects  in  the  Act. 

The  experience  of  the  Court  during  some  fifteen 
years  of  existence  shows  that  the  Act  under  which  it 
works  is  very  defective.  This  fact  is  not  surprising, 
for  the  experiment  is  novel.  For  instance,  there  is 
the  defect  to  which  I  have  already  referred,  that  the 
Court  cannot  appoint  shop  committees  or  industrial 
councils.  Even  the  power  to  create  a  board  of 
reference  is  defective.  The  Court  is  empowered  to 
create  a  board  to  deal  with  any  "specified"  matter 
which  under  the  award  may  require  to  be  dealt  with ; 
but  it  has  been  held  by  the  Full  High  Court  that  the 
Court  must  "specify"  each  difficulty  to  be  dealt  with 
before  it  knows  what  difficulties  will  arise  (see 
Article  II.). 

Another  thing  :  the  Court  has  no  power  to  enforce 
its  own  awards.  Parliament  purported  to  confer  this 
power  ;  but,  according  to  a  decision  of  the  Full  High 


FOR  LAW  AND  ORDER  iii 

Court,  the  provision  is  invalid  because  the  President 
has  not  a  life  tenure  of  his  office.^  The  enforce- 
ment of  awards  is  held  to  be  part  of  the  judicial 
power  of  the  Commonwealth  ;  and  it  is  held  that, 
under  Sections  71,  72  of  the  Constitution,  no  judge 
can  exercise  that  power  unless  he  has  a  life  tenure. 
There  is  this  curious  result,  that  proceedings  for  en- 
forcement come  before  police  magistrates  who  have 
usually  a  tenure  at  the  mere  will  of  the  Executive. 
When  I  say  that  the  parties  strongly  desire  that  the 
Court  of  Conciliation  should  itself  authoritatively 
enforce  its  own  awards,  I  desire  not  to  be  understood 
as  reflecting  in  the  slightest  way  on  the  police  magis- 
trates. But  I  say  that  the  more  confidence  the 
parties  can  feel  as  to  the  enforcement  of  awards  (or 
agreements  deemed  to  be  awards),  the  more  they  will 
favour  the  settlement  of  their  disputes  by  or  through 
the  Court,  and  the  less  will  they  heed  those  who  in- 
cite to  strikes.  So  strong  is  the  preference  for  the 
Court,  that  the  President  is  frequently  asked  by  both 
sides  to  say  what  ought  to  be  done  when  some  dif- 
ference arises,  both  sides  agreeing  to  carry  out  his 
decision,  whatever  it  may  be.^  Even  where  em- 
ployers are  not  bound  by  the  award,  they  sometimes 
ask  the  President's  ruling  with  regard  thereto.  The 
State  Wheat  Board  of  New  South  Wales  had  just 
secured  a  decision  from  the  Full  High  Court  to  the 
effect  that  the  Court  of  Conciliation  had  no  power  to 
bind  the  Board,  being  a  Government  agency,  as  to  its 
operations ;  but  as  the  Board  could  not  get  waterside 
workers  to  offer  themselves  for  work  except  under  the 
conditions  of  the  award,  it  asked  the  Court  to  decide 

*  Waterside  Workers  v.  Alexander,  25  C.L.R.  434. 
2  E.g.,  13  C.A.R.  178,  194. 


112  A  NEW  PROVINCE 

a  doubtful  point.  The  President  decided  it,  in  order 
to  aid  the  Board.  ^  The  Court  has  pubhcly  stated 
that  this  power  to  enforce  should  be  given  ;  but  the 
Federal  Government  has  not  stirred. 

Again  :  it  has  been  held  by  the  Full  High  Court 
that  under  Section  28  of  the  Act  there  can  be  no 
new  dispute  entertained  by  the  Court  of  Conciliation 
during  the  specified  period  of  an  award  on  a  subject 
which  has  been  dealt  with  in  that  award — even 
though  quite  new  circumstances  have  arisen,  though 
the  actual  claims  in  respect  of  the  subject  are  dif- 
ferent, and  though  there  are  parties  to  the  new  dis- 
pute who  were  not  parties  to  the  old  dispute.  Even 
if,  since  the  award  was  made,  the  cost  of  living  should 
have  unexpectedly  increased  by  100  per  cent,  and 
new  claims  made,  the  Court  can  give  no  relief ;  the 
employees  must  be  left  to  the  old  way  of  seeking  re- 
lief by  strike.^  Moreover,  when  the  Court,  after  the 
expiration  of  an  award,  is  in  a  position  to  make  a  new 
award,  it  cannot  make  the  new  award  apply  to  the 
whole  time  of  the  actual  dispute — e.g.,  if  increased 
rates  be  granted  they  must  not  apply  to  the  time 
before  the  new  award  is  actually  made.  Before  this 
ruling  was  given,  the  Court  was  frequently  able  to 
get  the  men  to  offer  for  work,  to  continue  the  opera- 
tions required  by  the  country,  by  assuring  them — 
generally  with  the  consent  of  the  employers — that 
the  new  rates  would  apply  as  from  the  beginning  of 
the  dispute.  Such  an  assurance  was  a  potent  aid  to 
continuity  of  operations  ;  but  it  cannot  now  be  given. 
The  Deputy-President  as  well  as  the  President  has 
called  public  attention  to  the  crying  need   for   an 

1  Waterside  Workers,  13  C.A.R.  176. 

2  Gas,  27  C.L.R.  72. 


FOR  LAW  AND  ORDER  113 

amendment  of  Section  28  ;  and  the  Full  High  Court 
has  strongly  recommended  the  Government  and  Par- 
liament to  give  attention  to  the  subject.  But  all  the 
appeals  are  unavailing. 

Further :  it  is  of  the  utmost  importance  that  the 
expense  incidental  to  proceedings  before  the  Court 
should  be  reduced  as  far  as  possible.  Those  who 
favour  "  direct  action,"  the  weapon  of  strike,  are  con- 
tinually pointing  to  the  expense  of  seeking  relief 
through  the  Court.  The  main  item  of  expense  is 
that  of  bringing  witnesses  from  long  distances,  and 
of  keeping  them  until  they  have  given  their  evidence. 
Lawyers  are  usually  the  scapegoat  when  people  com- 
plain of  expense ;  but,  inasmuch  as  in  the  hearing  of 
a  dispute  lawyers  cannot  appear  except  by  unanimous 
consent,  lawyers'  costs  do  not  usually  affect  seriously 
the  aggregate  of  expenditure.  But  much  expense 
could  be  saved  if  a  separate  application  to  the  High 
Court  to  decide  as  to  jurisdiction  were  made  un- 
necessary. In  1914  Parliament  certainly  did  service 
to  the  objects  of  the  Act  by  putting  an  end  to  the 
practice,  previously  so  common,  of  parties  fighting 
the  union  on  the  merits,  and  then,  if  dissatisfied, 
applying  to  the  High  Court  for  prohibition — usually 
on  the  ground  that  there  was  no  "  dispute  extending 
beyond  the  limits  of  any  one  State."  By  a  new 
section.  Section  21AA,  Parliament  provided  that  the 
decision  of  a  justice  of  the  High  Court,  on  an  appli- 
cation separate  from  the  arbitration,  should  be  con- 
clusive on  the  subject.  But  in  place  of  allowing  the 
President  or  Deputy-President — both  of  whom  are 
justices  of  the  High  Court — to  decide  this  point  of 
jurisdiction  when  the  case  is  called  on  for  conciliation 
and  arbitration.  Parliament  has  required  a  separate 

8 


114  A  NEW  PROVINCE 

application.  Not  only  are  there  costs  of  lawyers  on 
this  application,  but  the  mere  expense  of  serving 
every  respondent  with  the  summons  is  formidable. 
An  application  has  to  be  made  for  leave  to  substitute 
service  by  letter  instead  of  personal  service ;  and 
each  letter  has  to  be  sent  by  post  and  registered. 
Where  there  are,  as  often  there  are,  hundreds  or 
thousands  of  respondents,  the  expense  is  very  sub- 
stantial. The  President  has  recommended  an  amend- 
ment of  the  Act,  but  nothing  has  been  done. 

Then  the  judicial  staff  of  the  Court  should  un- 
doubtedly be  increased.  At  present  there  is  but  one 
Deputy- President,  and  the  two  justices  are  unable  to 
overtake  the  increasing  work.  Industrial  disputes 
will  not  brook  "the  law's  delay."  Claims  for  in- 
dustrial relief  are  so  live  and  urgent  in  these  times  of 
unrest  that  they  cannot  be  postponed  as  Lord  Eldon 
would  postpone  a  decision  involving  the  application 
of  the  Rule  in  Shelley's  case.  It  is  encouraging  to 
find  the  unions — and  the  employers — so  eager  for  the 
Court's  assistance ;  but  the  assistance  often  comes 
too  slowly.  In  New  South  Wales  the  Industrial 
Court  of  the  State  has  three  judges.  In  Queensland 
there  are  two  at  least ;  yet  this  Court,  which  has  all 
Australia  within  its  jurisdiction,  has  only  two — some- 
times one.  It  may  be  doubtful  whether  the  Act 
allows  more  than  one  deputy ;  if  doubtful,  the  Act 
should  be  amended.  The  President  has  appealed  for 
more  assistance,  but  the  appeal  is  apparently  not 
heeded. 

The  few  defects  which  I  have  mentioned  are  defects 
which  could  be  cured  by  parliamentary  action,  and 
Parliament,  on  such  a  subject,  has  to  be  led  by  the 
Government.     The  Government,  however,  is  either 


FOR  LAW  AND  ORDER  115 

unable  to  understand  the  need  for  amendment  or  is 
unwilling  to  aid  the  Court  in  its  efforts  for  the  public 
good.  I  can  find  no  other  possible  explanation.  But 
an  alteration  of  the  Constitution  would  be  necessary 
if  we  are  to  put  the  regulation  of  industrial  matters 
on  a  thoroughly  satisfactory  basis.  At  present  the 
State  Parliaments  have  control  of  the  whole  subject 
of  labour,  with  the  exception  of  disputes  extending 
beyond  one  State.  Employers  are  often  harassed  by 
having  two  sets  of  laws,  State  and  Federal,  as  to 
labour;  and  in  a  big  undertaking  there  are  often  a 
dozen  or  score  of  awards  to  be  obeyed,  each  drawn 
up  independently,  not  harmonized  wuth  the  others. 
In  the  first  session  of  the  first  Federal  Parliament 
a  resolution  was  unanimously  passed  in  both  Houses 
in  favour  of  entrusting  the  Federal  Parliament  with 
the  whole  subject  of  labour  ;  and,  if  I  may  judge  the 
views  of  the  Prime  Minister  from  certain  amend- 
ments of  the  Constitution  which  he  submitted  to  the 
country,  but  which  the  country  has  rejected  for 
political  reasons,  he  sees  clearly  that  this  is  the  true 
goal.  I  feel  free  to  say  something  on  this  subject 
because  of  an  application  which  came  before  me 
officially  under  Section  20  in  a  recent  case  as  to  the 
pastoralist  industry.^  Disputes  relating  to  shearers 
and  shed  hands  have  always  been  recognized  as  being 
peculiarly  fitted  for  this  Australian  Court,  and  have 
been  settled  in  this  Court  hitherto.  The  men  move 
from  north  to  south,  from  State  to  State,  from 
pastoral  station  to  station,  as  the  season  advances. 
The  work  throughout  is  substantially  the  same.  The 
Queensland  Industrial  Court,  however,  has  this  year 
— in  pursuance  of  its  undoubted  power — prescribed 
^  Pastoralists,  1920,  not  yet  reported. 


ii6  A  NEW  PROVINCE 

(amongst  other  things)  forty-four  hours  per  week  as 
the  maximum  number  of  hours  for  Queensland 
stations.  In  1917  the  Australian  Court  did  not  see 
fit  to  depart  from  the  Australian  standard  of  forty- 
eight  hours.  It  is  easy  to  conceive  the  friction  which 
this  conflict  of  the  awards  creates.  A  shearer  passing 
over  the  invisible  line  of  boundary  from  Queensland 
into  New  South  Wales  will  object  to  working  forty- 
eight  hours;  and  the  shearers  in  New  South  Wales, 
Victoria,  and  South  Australia  will  claim  forty-four 
hours  as  in  Queensland.  According  to  the  news- 
papers they  are  actually  refusing  to  accept  work 
except  on  the  Queensland  terms  as  to  hours  and 
other  conditions.  Obviously  all  the  conditions  of 
such  labour  should  be  subject  to  one  final,  co-ordi- 
nating Australian  authority,  such  as  would  prevent 
invidious  comparisons  and  unnecessary  causes  of  dis- 
content. In  short,  the  conditions  should  be  regu- 
lated on  one  system,  though  the  system  may  allow 
suitable  differences  in  detail. 

This  view  is  not  at  all  inconsistent  with  the  sug- 
gestion made  by  some  Federal  Ministers  that  there 
should  be  local  tribunals  for  local  disputes.  But  as 
the  Constitution  stands,  the  Federal  Parliament 
cannot  create  such  tribunals — the  disputes  would  not 
extend  beyond  one  State.  It  is  quite  true  that  for 
certain  points  of  difference  local  tribunals  are  the 
best — especially  for  such  points  of  difference  as 
boards  of  reference  or  shop  committees  might  well 
deal  with  as  above  stated.  At  the  same  time  it  has 
to  be  borne  in  mind  that  employees  jealously  watch 
any  privileges  which  employees  in  other  localities  or 
other  undertakings  enjoy,  and  which  they  do  not 
enjoy  themselves ;    and  it  is  clear  that  such  other 


FOR  LAW  AND  ORDER  117 

local  tribunals  ought  to  be  subject  to  Australian  re- 
vision. This  means  co-ordination  to  be  effected  by 
the  tribunal  which  is  Australian  in  its  scope.  At 
present  the  unions  are  only  too  apt  to  treat  the  State 
and  Federal  Courts  as  competing  shops,  and  they 
resort  to  the  shop  which  is  likely  to  grant  them 
the  most. 

Special  "Tribunals." 

It  is  bad  enough  for  the  State  and  the  Federal 
Parliaments  to  be  simultaneously  dealing  with  the 
same  subject  of  labour  conditions ;  but  there  is 
"  confusion  worse  confounded "  when  a  Govern- 
ment creates,  or  purports  to  create,  novel  special 
**  tribunals."  The  first  instance,  I  think,  was  that  of 
the  coal  miners  ;  the  facts  are  set  out  in  Article  II., 
and  I  do  not  feel  justified  in  repeating  here  the  sad 
story.  The  community  was  deprived  of  the  coal  it 
wanted,  and  as  the  President  refused  to  arbitrate 
unless  the  Prime  Minister  left  him  judicially  free, 
the  Prime  Minister  appointed  a  tribunal  which 
granted  the  miners'  claims  without  evidence  and 
without  argument.  The  consequences  of  this  yield- 
ing to  strike,  under  the  veil  of  a  "  tribunal,"  have 
been,  as  I  pointed  out  in  Article  II.,  disastrous; 
and  the  coal  miners  are  now  threatening  a  general 
strike  unless  further  demands  which  they  make  be 
conceded. 

Last  year  there  was  the  seamen's  strike,  which  I 
have  already  described.  A  Minister  sat  in  private 
conference,  and  granted  to  the  strikers  all  the  wages 
they  claimed,  and  other  things.  In  its  inception,  this 
conference  could  not  fairly  be  called  a  "tribunal"; 
for    the    Government   was,   as    before    stated,   the 


ii8  A  NEW  PROVINCE 

principal  shipping  employer  in  Australia ;  and  an 
employer  must  always  be  free  to  confer  with  his 
employees  or  their  union.  But,  as  the  Minister 
forced  the  other  shipping  employers  to  agree  to  the 
same  terms  as  the  Government  accepted,  the  con- 
ference became  in  effect  a  tribunal.  The  grave 
consequences  of  granting  the  concessions  claimed 
without  granting  equivalent  concessions  to  the  men 
of  other  ratings  who  had  not  struck  have  already  been 
stated.  When  the  marine  engineers  struck,  in  order 
to  get  as  good  concessions  as  the  seamen  had  got,  the 
Government  then,  and  not  till  then,  yielded  along  the 
whole  line  to  nearly  the  full  extent  of  the  claims,  but 
left  it  to  a  special  tribunal,  having  an  eminent  soldier 
as  chairman,  to  say  how  much  of  the  balance  of  the 
claim  should  be  granted.  The  tribunal  sat,  and  the 
public  have  been  informed  that  the  members  of  the 
union  are  still  discontented  as  they  did  not  get  all 
that  they  asked. 

Then  there  was  the  case  of  the  Waterside  Workers' 
"  tribunal."  The  Court  had  refused,  in  1918,  to 
restore  to  the  members  of  the  union  a  right  to 
preference  in  employment,  or  to  restore  the  old 
practice  of  engagement  at  the  wharves.^  The 
employers  had  granted  this  preference  in  191 1  by 
agreement,  but  had  duly  terminated  it  in  1917  in 
consequence  of  the  members  having  struck  work  in 
sympathy  with  New  South  Wales  State  railway 
employees;  and  they  also  established  bureaux  for 
engagement,  for  the  protection  of  the  men  who 
offered  for  work  during  the  strike.  The  Court, 
finding  that  the  work  of  the  country  was  being  done 
under  the  new  arrangements,  refused  to  interfere 
>■  12  C,A.R.  277. 


•     FOR  LAW  AND  ORDER  iig 

with  them.  The  Ministers  appointed  a  gentleman 
under  a  royal  commission  to  inquire  into  the  bureau 
system  in  Melbourne.  It  turns  out  now  that  his 
report  was  unfavourable  to  the  abolition  of  the 
system ;  but  in  the  meantime,  and  without  disclosing 
the  report,  the  Ministers  announced  that  the  bureau 
system  was  to  be  abolished.  There  is  no  pretence 
that  this  abolition  was  effected  with  the  consent  of  the 
other  ship-owners.  Then  the  Sydney  members  of  the 
union  pressed  for  a  similar  decision  for  Sydney ;  and 
the  Prime  Minister  requested  the  ship-owners  to 
nominate  representatives  to  sit  on  a  *' tribunal" 
which  he  had  decided  to  create  "  with  a  view  to 
effecting  a  settlement  of  matters  in  dispute  on  similar 
lines  to  those  adopted  in  the  case  of  Melbourne 
wharf  workers."  Some  of  the  ship-owners  have 
objected,  well  knowing  how  such  a  tribunal,  created 
ad  hoc,  would  be  likely  to  act ;  and  the  proposal  for 
such  a  tribunal  has,  up  to  the  present  time, 
miscarried. 

Next  there  is  the  Gas  case,  where  the  Melbourne 
gas  employees  struck  work  (as  set  out  in  the  pre- 
vious part  of  this  article)  in  June,  igao.  The 
Premier  of  Victoria  was  strongly  pressed  to  create  a 
special  tribunal  to  decide  as  to  the  difference  between 
what  the  Melbourne  companies  offered  and  what  the 
union  claimed ;  but  he  has  evidently  seen  the  danger 
of  allowing  such  "  tribunals,"  and  has  refused  to 
tread  the  primrose  way  which  gives  present  ease  and 
manifold  and  greater  troubles  hereafter. 

Apart  from  the  unconstitutionality,  the  illegality, 
of  such  special  tribunals  (for  the  Crown,  the  Execu- 
tive, has  no  power  without  an  Act  of  Parliament  to 
create  novel  tribunals),  the  practice  of  creating  (or 


120  A  NEW  PROVINCE 

purporting   to   create)  them   is  most  unwise,  most 
disastrous  in  its  effects  on  industry,  and  on  continuity 
in  industrial  operations.     A  special  tribunal  is  really 
a  device  whereby  the  Government  tries  to  **  save  its 
face "  when   yielding  to  a  strike.     The  tribunal  is 
expected  to  grant  the  claims,  just  or  unjust,  so  far  as 
is  necessary  to  induce  the  strikers  to  resume  work- 
It  secures  present  ease  by  encouraging  further  and 
far  greater  trouble.     As  a  child  who  finds  that  the 
more  he  cries  the  more  he  gets  his  way,  will  cry  the 
more,  so  with  men  who  strike.     When  Parliament 
provides  a  fair  and  even  sympathetic  tribunal  to  con- 
sider grievances,  the  Government  will  not  prevent 
but  will  actually  induce  stoppages,  if  it  hold  out  the 
prospect  of  a  second  tribunal  to  supplement  or  super- 
sede the  decisions  of  the  legitimate  tribunal.     If  a 
Government  wanted  to  destroy  the  system  of  con- 
ciliation and  arbitration,  and  to  encourage  unions  to 
adopt  the  course  of  seeking  remedies  by  holding  up 
the  community,  it  could  not  do  so  more  effectually 
than   by   this   practice   of   special   tribunals.      The 
proper   course   is   obviously   to   watch   and    correct 
any  defects   in   the   legitimate   tribunal ;    to    make 
access  to  it  easy  and  speedy  and  cheap;   to  take 
away  from  the  employees  all  inducement  to  strike, 
all  excuse  for  striking  ;  to  satisfy  public  opinion  that 
for  every  real  grievance  there  is  a  remedy  on  lines 
of  reason ;  and  never  to  yield  anything  to  force,  to 
strike. 

It  is  evident  that  some  people  do  not  yet  realize 
the  importance  of  this  great  experiment,  or  the 
responsibility  which  rests  on  those  who  administer 
the  Act,  and,  I  must  add,  on  those  who  interfere  with 
its  administration.     It  may  be  worth  while  to  con- 


I 


FOR  LAW  AND  ORDER  121 

sider  some  figures.  It  appeared  in  the  course  of  a 
case  that  in  1918  the  interstate  ships  alone  (apart 
from  the  overseas  ships  and  State  coastal  ships)  paid 
to  waterside  workers  about  one  million  pounds 
sterling.  The  rates  were  then  increased  from  is.  gd. 
to  2s.  3d.  per  hour ;  so  it  may  fairly  be  inferred  that 
the  increase  of  6d.  per  hour  would  cost  the  interstate 
shipowners  £285,714  per  annum  more  at  least.  In 
another  case,  that  of  the  pastoralists  in  1917,  some 
newspaper  alleged  that  the  increases  in  rates  pre- 
scribed by  the  award  involved  the  transfer  of  four 
million  pounds  per  annum  from  the  pastoralists  to 
the  employees.  This  statement  was  not  verified ;  no 
person  stands  sponsor  for  it ;  but  it  was  repeated  as 
if  gospel  truth  from  newspaper  to  newspaper,  from 
mouth  to  mouth.  "  How  shocking  that  any  Court 
should  have  such  power!"  But  the  greater  the 
amounts  involved,  the  greater  the  necessity  for 
giving  to  the  Court  all  the  assistance  that  it  needs. 
The  truth  is  that  the  Court  transfers  more  money 
and  affects  directly  more  human  lives  than  all  the 
ordinary  Courts  of  Australia  taken  together. 


Assuming  it  to  be  established  that  the  Court  has 
greatly  aided  in  securing  the  continuity  of  industrial 
operations  in  these  troublous  and  critical  times,  that 
it  has  produced  great  improvements  in  the  conditions 
of  the  workers,  and  that  it  has  largely  reduced  to 
system  and  standardized  the  use  of  human  life  for 
industrial  processes,  the  question  yet  remains,  has 
the  work  of  the  Court  any  permanency  for  good? 
At  this  point,  many  generous,  public-spirited  theorists 
part  company.    Some  of  them  have  come  to  the  con- 


122  A  NEW  PROVINCE 

elusion  that  the  remedy  for  all  our  industrial  troubles 
lies  in  some  socialistic  scheme  in  which  the  whole 
wage  system  is  to  be  abolished.  Now  I  am  far  from 
deprecating  idealism.  There  is  no  aspiration,  no 
prayer,  so  ennobling  as  "  Thy  kingdom  come."  But 
though  we  think  we  see  our  distant  objective,  though 
we  look  with  longing  for  that  which  is  great  and 
complete,  as  there  float  to  our  eager  senses  the 
*'  murmurs  and  scents  of  the  infinite  sea,"  we  cannot 
confine  the  course  of  human  movement  to  the  exact 
channel  which  we  mark  out  for  it.  What  is  to  be 
deprecated  is  the  opposition  of  idealists  to  any 
channel  towards  the  ocean  that  is  not  of  their  own 
selection.  The  water  must  and  will  take  its  own 
course.  In  industrial  unrest,  there  is  much  more 
than  mere  wages.  If  the  wage  system  could  be 
abolished  to-morrow,  everywhere,  if  it  were  just  and 
possible  for  the  workers  to  get  "  the  whole  product  of 
labour,"  there  would  still  be  need  for  regulation  of 
the  conditions  under  which  human  life — the  most 
valuable  thing  in  the  world — is  to  be  safeguarded 
from  deterioration  and  degradation,  is  to  get  full 
opportunity  for  the  full  development  of  its  powers. 
Where  there  are  more  wills  than  one,  there  must 
come  collisions  of  will — and  disputes;  and  even  if 
the  directors  of  industry  were  to  be  elected  there  still 
would  be  need  for  regulation.  Regulation  has  come 
to  stay. 

Since  I  wrote  this  article,^  the  policy  of  the 
Government  has  been  announced  in  Parliament.  I 
have  been  left  to  the  newspapers  of  July  30  for  in- 
formation as  to  the  policy.  It  is  proposed  in  the  Bills 
{inter  alia)  to  create  special  tribunals  at  the  will  of 

^  The  article  was  completed  towards  the  end  of  July,  1920. 


FOR  LAW  AND  ORDER  123 

the  Government;  and  a  Minister  may  even  refer 
to  a  tribunal  a  question  whether  something  that  a 
union  has  failed  to  obtain  from  the  Court  should  be 

granted : 

"  O  navis  referent  in  mare  te  novi 
Fluctus  .  .  . 

Nunc  desiderium  curaque  non  levis." 


124  A  NEW  PROVINCE 


CHAPTER  IV. 

Subsequent  Decisions. 

Since  Article  III.  was  written,  July,  1920,  there  have 
been  several  further  principles  established  which  may 
have  a  far-reaching  effect.  It  must  be  borne  in  mind, 
however,  that  the  principles  are  not  legally  binding 
on  any  deputy-president,  or  on  any  successor  in  the 
presidency,  and  that  I  alone  am  responsible. 

Reduction  of  Hours. 

In  the  case  of  the  Australian  Timber  Workers' 
Union^  the  Court  reduced  the  ordinary  hours  from 
forty-eight  to  forty-four  per  week.  Extra  pay- 
ment has  to  be  made  for  any  overtime.  Before 
coming  to  this  conclusion,  the  Court  adopted  a  course 
which  is  unusual,  but  clearly  within  its  powers  to 
**  inform  its  mind  in  such  manner  as  it  thinks  just" 
Feeling  that  it  should  not  prescribe  forty-four  hours 
for  this  industry  unless  it  saw  its  way  to  prescribe 
similar  hours  in  many  other  similar  industries,  es- 
pecially industries  involving  the  tending  of  time- 
saving  machines,  the  Court  invited  the  federal  council 
of  employers,  the  chambers  of  manufactures,  and  the 
Trades  Hall  councils  (of  unions)  to  appear,  and  it 
allowed  certain  great  undertakings  and  interests  to 
be  represented  on  their  request.  The  Federal  Govern- 
ment was  also  invited  to  appear  as  representing  the 
general  public ;  but  it  refused  the  invitation.  The 
1  14C.A.R.  811. 


FOR  LAW  AND  ORDER  125 

evidence  and  arguments  took  a  much  longer  time  than 
all  the  rest  of  the  267  claims  in  the  log  ;  but  the 
issue  at  stake  was  worthy  of  all  the  time  expended. 
Judgment  was  given  on  this  issue  on  November  12, 
1920,  in  favour  of  the  union.  Substantially  it  means 
that  the  workers  get  a  "  clean "  eight  hours'  day, 
with  half-holiday  on  Saturdays.  Hitherto  they  had 
to  purchase  the  half-holiday  by  working  an  extra 
three-quarters  of  an  hour  on  five  days,  and  an  extra 
quarter  on  Saturday ;  and  this  meant  that  they  had 
to  rise,  breakfast,  travel,  and  start  work  at  the  mill 
or  shop  (usually)  at  7.30  a.m.  in  winter  as  well  as  in 
summer.  It  is  impossible  to  set  out  here  all  the  con- 
siderations which  influenced  the  Court ;  they  can  be 
found  in  reports  for  the  year  1920  (vol.  xiv.). 

But  the  Court  refused  to  accept  the  argument  for 
the  union  to  the  effect  that  hours  should  be  lowered 
because  thereby  more  men  would  have  to  be  employed; 
it  treated  relief  from  the  bane  of  unemployment  on 
such  a  ground  as  illusory.  At  the  same  time,  the 
fact  that  the  employers  might  have  to  employ  more 
men  or  to  pay  extra  rates  for  overtime,  was  not  a 
valid  ground  for  refusing  to  reduce  the  hours  if  the 
reduction  were  otherwise  just  and  expedient.  The 
Court  was  much  assisted  by  the  recent  scientific 
studies  of  Miss  Goldmark,  Dr.  Vernon,  and  others  as 
to  fatigue  and  efficiency,  and  by  the  consideration 
that  the  workers'  time  and  vitality  should  not  be  all 
consumed  in  their  task  of  breadwinning.  The  same 
ordinary  hours  have  since  been  applied  in  the  case  of 
the  Amalgamated  Society  of  Engineers,^  and  in  other 
cases. 

^  Amalgamated  Society  of  Engineers,  15  C.A.R. 


126  A  NEW  PROVINCE 

Increase  of  Secondary  Wage. 

In  the  dispute  between  the  Merchant  Service  Guild 
and  shipowners  in  igi6,  as  well  as  in  other  cases 
during  the  war,  the  Court  had,  in  fixing  the  minimum 
wages  for  skilled  workers,  added  to  the  basic  wage  as 
increased  by  the  increased  cost  of  living  the  mere 
amount  of  the  previous  secondary  wage  for  training 
and  skill.  That  is  to  say,  the  basic  wage  was  increased 
from  £iio  to  ;£'i6i,  by  reason  of  the  decrease  in  the 
purchasing  power  of  money  ;  but  the  ^f  40  per  annum, 
which  had  been  treated  as  the  proper  secondary 
wage  of  junior  officers  in  1907  and  191 1,  was  merely 
added,  without  increase,  to  the  basic  wage  (see 
Chapter  III.)- 

But  the  Court  then  said : 

"  It  may  be  urged  that,  in  the  absence  of  evidence 
to  the  contrary,  the  decrease  in  the  value  of  the 
sovereign  must  be  treated  as  applying  to  all  the  com- 
modities required  by  a  man  in  the  position  of  an 
officer  as  well  as  to  the  commodities  required  for  a 
family's  support  on  a  labourer's  standard  of  living;  and 
it  is  quite  true  that  the  pressure  of  social  forces  makes 
the  extra  expenditure  for  the  officer  almost  as  essential 
for  him  as  the  labourer's  expenditure  for  the  labourer. 
But  the  fact  remains  that  it  is  not  so  absolutely 
essential ;  and  in  a  time  of  violent  disturbances  in 
prices  such  as  the  present,  in  a  time  when  war  has 
combined  with  the  drought  of  1914-15  to  produce  the 
rather  alarming  figures  for  1915  on  which  I  have  to 
act,  I  do  not  think  it  advisable,  in  framing  an  award 
for  three  or  five  years  to  come,  to  push  matters  to  an 
extreme."^ 

The   promise  to  be  implied  from  this  judgment 
was  fulfilled  in  September,  1920 ;  for  the  employers 
1  Merchant  Service  Guild,  10  CA.R.  ^14,  226. 


FOR  LAW  AND  ORDER  127 

produced   no   evidence   tending   to    show  that   the 
industry  could  not  bear  the  increase  : 

**  The  war  is  over ;  and  although  we  cannot  be  said 
to  have  reached  the  desired  haven  in  all  respects,  it 
would  not  be  fair  to  withhold  from  these  trained  men 
their  proper  secondary  wage  for  ever.  .  .  .  The  re- 
sult is  that  if  the  accepted  margin  between  the  basic 
wage  and  the  junior  officer's  wage  is  to  be  restored  to 
the  officer,  his  pay  should  not  be,  in  round  figures, 
;^i8  los.  per  month.  I  mean,  of  course,  the  true 
wage  as  represented  by  the  commodities  which  the 
money  paid  will  purchase.  .  .  .  The  proper  margin 
must  be  restored  if  we  are  to  keep  up  a  succession  of 
trained  men  for  the  merchant  service,  and  if  we  are 
even  to  keep  our  men  in  Australia.^ 

The  last  words  refer  to  the  attractive  terms  offered 
in  America  in  order  to  get  qualified  men  for  the  new 
American  merchant  service,  and  in  Britain  in  order 
to  refill  the  British  Service. 

Machinists  and  Tradesmen. 

The  subject  of  the  relation  of  machinists  to  trades- 
men would  merit  a  treatise  for  itself.  In  the  recent 
case  of  the  Amalgamated  Society  of  Engineers,^  it 
was  raised  in  an  acute,  though  not  quite  consistent, 
form.  The  Court  was  asked  to  prescribe  the  same 
rates  for  most  kinds  of  the  machine  operatives  as  for 
full  tradesmen  such  as  fitters  and  turners ;  but  a  lower 
rate  was  claimed  for  such  machinists  as  drillers,  nut 
and  bolt  makers,  etc.  The  Court  put  the  position 
thus: 

**  In  recent  years,  the  work  done  by  fitters  and 
turners  (in  particular)  has  been  greatly  aided  in  out- 

1  Merchant  Service  Guild,  14  C.A.R. 
=•  Engineers,  15  C.A.R. 


128  A  NEW  PROVINCE 

put,  in  speed,  and  in  finish  by  divers  ingenious 
machines  worked  by  "  machinists  " — "  operatives  " — 
men  not  having  the  full  craftsman's  training,  but 
placed  by  the  employer,  as  to  pay  and  position, 
somewhere  between  the  tradesman  and  the  labourer. 
These  machinists  are  largely  collected  from  trades- 
men's assistants,  or  from  labourers,  or  from  lads  who 
go  to  the  works  straight  from  school.  By  confining 
their  energies  to  some  "one  particular  machine,  they 
attain  exceptional  speed.  The  employer  gets  a  greater 
output,  and  yet  the  machinists  are  generally  paid  less 
than  the  fitter." 

It  was  admitted  by  employers  that  work  to  be  done 
with  the  machine  was  work  which,  but  for  the 
machines,  would  have  to  be  done  by  the  craftsman 
with  the  old  tools — hammer,  chisel,  vice,  etc. — that 
to  be  a  good  fitter  or  turner  a  man  should  be  able  to 
work  almost  all  the  appropriate  machines ;  and  that, 
if  an  employer  had  to  pay  the  same  rate  to  a  machinist 
as  to  a  fitter,  he  would  employ  a  fitter,  as  there  are 
contingencies  in  which  a  fitter's  training  is  of  use. 
Instances  were  given  of  lads  put  on  to  a  drilling 
machine  at  the  age  of  fifteen  or  sixteen,  and  being 
kept  to  drilling  holes  only — getting  no  other  employ- 
ment in  engineering  shops  during  all  their  working 
life  than  that  of  drilling — because  they  can  give  more 
speed  than  others  at  drilling.  Capacity  for  speed  is, 
in  itself,  a  kind  of  skill.  The  Court  took  the  view 
that  to  prescribe  lower  wages  for  the  mere  machinist 
was  to  put  pressure  on  the  employer  to  choose  the 
man  who  gets  the  lower  wages,  was  "  loading  the 
dice  "  against  the  craftsman,  and  that  the  best  way 
to  discourage  the  manufacture  of  imperfect  trades- 
men, to  prevent  slavery  to  the  machine,  to  develop 
full  manhood,  was  to  prescribe  the  same  minimum 


FOR  LAW  AND  ORDER  129 

rate  for  the  machinist  as  for  the  full  tradesman.  The 
practice  in  the  United  States  and  (to  some  extent) 
in  Great  Britain  supported  this  course.  On  this  line 
of  reasoning  the  fitter's  wage  was  prescribed  for 
planers,  shapers,  slotters,  etc. 

Weekly  Hiring. 

In  the  case  of  the  timber  workers*  and  in  the 
subsequent  case  of  the  engineers^  the  Court,  as 
requested  by  the  unions,  prescribed  weekly  wages. 
The  practice,  as  to  the  engineers,  had  always  been  to 
pay  for  the  hours  of  actual  work  only ;  so  that  if  the 
man's  work  stopped  for  lack  of  material,  or  for  a 
breakdown,  or  for  illness,  or  for  any  other  cause,  his 
wages  stopped.  If  he  lost  an  hour's  work — even 
five  minutes'  work  in  some  cases — he  lost  his  pay  for 
the  time.  The  Court  had  often  expressed  itself  in 
favour  of  weekly  wages,  where  practicable;  and  as 
the  employment  of  engineers  is  regular,  not  casual, 
and  fairly  permanent,  the  case  seemed  to  be  eminently 
suitable  for  weekly  wages. 

"  There  is  nothing  that  steady  family  men  desire 
more  than  constant  work  and  some  certainty  as  to 
their  income  for  a  week  or  more  ahead.  .  .  .  Under 
weekly  wages  the  employee  tends  to  identify  himself 
with  the  particular  undertaking,  to  feel  interested  in 
the  concern ;  and  it  takes  much  more  to  induce  him 
to  throw  up  a  job  if  it  is  constant.  It  is  in  the 
interest  of  the  employers,  as  well  as  in  the  interest 
of  employees,  that  the  employment  should  not  be 
casual,  that  a  man  should  not  feel  himself  to  be  a 
piece  of  flotsam  or  jetsam  in  the  industry,  that  he 
should  have  a  sense  of  homeship  in  the  concern. 
Moreover  the  wages  prescribed  will  be  less." 

*  Timber  Workers,  14  C.A.R.  *  Engineers,  15  C.A.R. 

9 


130  A  NEW  PROVINCE 

The  Court's  practice  is  to  prescribe  higher  rates 
per  hour  or  per  day  where  the  employment  is  casual 
or  intermittent. 

"  The  chief  objection  is,  of  course,  that  if  the 
employees  do  not  suffer  the  loss  of  an  hour's  pay  for 
an  hour's  absence  the  inducement  to  be  punctual  and 
regular  is  taken  away.  Of  course  the  employer  will 
have  power  to  discharge  the  employee  on  notice,  or 
in  the  case  of  wilful  misconduct  to  dismiss  him  forth- 
with, without  paying  him  for  the  part  of  the  week 
served ;  but  in  dismissing  certain  employees  the 
employer  may  be  rather  punishing  himself.  For 
instance,  roll-turners  are  essential  for  the  steel  works 
at  Waratah ;  but  they  are  very  scarce,  and  they 
cannot  be  replaced  by  others,  Mr.  E.,  one  of  the 
union  officials,  assures  me  that  the  men  would  not 
take  advantage  of  the  weekly  tenure  by  greater 
irregularity  of  attendance;  that  they  would  feel 
more  bound  in  honour  to  attend,  as  the  whole  loss 
of  the  non-attendance  would  fall  on  the  employer. 
I  shall  not,  until  the  experiment  be  tried,  treat  this 
sentiment  of  honour  as  a  thing  to  be  scorned.  More- 
over the  same  official  tells  me  that  if  absences  are 
more  frequent  under  the  weekly  wage  than  under  the 
hourly  he  thinks  that  the  Court  would  be  justified 
in  varying  the  award."  ^ 

The  Court,  in  prescribing  the  weekly  pay,  allowed 
a  deduction  for  absence  without  reasonable  cause ; 
and  any  difference  of  opinion  between  employer  and 
employee  as  to  reasonable  cause  has  to  be  settled 
either  by  the  written  concurrence  of  the  employer 
and  the  union  official  or  by  the  board  of  reference. 

^  Engineers,  15  C.A.R. 


FOR  LAW  AND  ORDER  131 


Piecework. 

I  find  in  the  New  Statesman  of  April  23  last  a 
curious  statement,  made  from  Australia,  that  the 
Court — or  rather  myself — "  practically  ignored  the 
relation  of  wages  to  output."  I  do  not  know  how 
the  able  writer  of  the  article  got  such  an  impression, 
unless  it  be  from  the  fact  that  in  the  shipbuilding 
case*  I  decided  that  the  Government  was  wrong  in 
excluding  from  employment  the  members  of  a  union 
— the  Amalgamated  Society  of  Engineers — unless 
the  union  agreed  to  submit  to  piecework  if  required. 
The  work  to  be  done  in  that  case  was  wholly  un- 
suited  for  piecework  rates.  There  was  practically  no 
repetition  work ;  and  the  skilled  managers  of  the 
shipbuilding  scheme  said  they  would  not  dream  of 
putting  the  men  on  piecework.  The  facts  are  stated 
in  Chapter  III.  On  the  other  hand,  I  refused 
to  interfere  with  piecework  rates  in  the  case  of  coal 
lumpers  in  Melbourne,^  and  I  refused  to  prohibit 
piecework  in  the  case  of  coopers.^  This  very  year, 
in  the  general  case  of  the  engineers,"*  I  refused  a 
claim  to  prohibit  absolutely  piecework,  premium, 
bonus,  etc. ;  but  in  view  of  the  intensely  bitter  feeling 
of  the  engineers  against  such  systems — a  feeling 
engendered  by  abuses  in  Britain — I  prescribed  that 
the  piecework  rates  and  conditions  must  be  approved 
by  the  union  or  by  the  appropriate  board  of  refer- 
ence. Some  of  the  men  said  they  would  consent  to 
piecework,  said  they  were  willing  to  have  piecework 
"if  the  men  had  some  say";  and  I  gave  them  "a 

1  Shipbuilding  Engineers,  12  C.A.R.  386. 

*  Waterside  Workers,  13  C.A.R.  615. 

3  Coopers,  12  C.A.R.  443.  *  15  C.A.R. 


132  A  NEW  PROVINCE 

say."  It  is  only  just.  Otherwise  the  employer  or 
his  foreman  states  a  price,  and  it  is  a  case  of  "  take 
it  or  leave  it."  As  Mr.  Sidney  Webb  has  pointed 
out,  the  man  has  to  bargain  individually,  without  the 
protection  of  his  union,  and  the  bargain  is  not  free 
and  equal.  The  men  have  found  that  the  greater 
their  output  the  greater  is  the  cutting  of  the  rates 
for  the  same  or  similar  operations  thereafter.  Some 
ghastly  instances  of  such  shortsighted  parsimony 
were  proved.  The  moral  effect  also  has  to  be  con- 
sidered on  men  who,  but  for  the  greed  and  strain  of 
piecework  and  its  congeners,  would  be  good  com- 
rades. One  leading  engineer  has  spoken  of  them  as 
**  the  various  systems  that  make  honest  men  thieves 
and  gluttons  and  enemies  out  of  shop-mates."  But 
in  the  making  of  articles,  as  distinguished  from  the 
repairing,  the  employers  are  in  competition  with 
other  countries ;  and  the  more  speed,  the  greater  out- 
put, the  less  the  price  at  which  the  employers  can 
supply  the  public.  Since  the  establishment  of  the 
steel  works  in  the  Newcastle  district  a  number  of 
ancillary  industries  have  been  started  for  various 
steel  products.  There  is  plenty  of  ironstone,  and  in 
the  Newcastle  district  plenty  of  coal  and  flux.  If 
the  cost  can  be  kept  down  it  is  quite  possible  that 
with  up-to-date  machinery  and  equipment  (at  present 
most  Australian  undertakings  are  defective  in  this 
respect),  and  with  proper  organization,  the  Newcastle 
district  may  become  the  main  source  of  supply  of 
engineering  products  for  the  countries  around  the 
Pacific  and  for  South  Africa.  But  the  position  which 
I  had  to  face  was  largely  psychological,  and  there  was 
no  hope  of  getting  engineers  to  accept  piecework 
even  where  it  is  necessary — say,  in  the  making  of 


FOR  LAW  AND  ORDER  133 

brass  cocks  or  the  fitting  up  of  meters — unless  the 
autocratic  powers  of  the  employers  as  to  rates  be 
put  under  reasonable  restraint.  There  is  no  hope  of 
piecework  without  such  restraint. 

Apprentices  and  Boy  Labour. 

The  Court  attaches  more  importance  than  ever  to 
the  need  for  full  training  to  the  full  craft.  It  dis- 
countenances the  deadly  system  of  "  improvers  " 
which  has  been  permitted  in  certain  States — "  im- 
provers "  who  are  kept  on  mere  repetition  work,  who 
learn  how  to  work  at  great  speed  one,  or  perhaps 
two,  machines,  and  become  unfitted  for  anything 
else.  The  country  needs  fully  trained  craftsmen,  and 
the  lads  need  to  learn  their  job  all  round.  There 
has  been  much  abuse  of  boy  labour.  Impecunious 
parents  have  been  tempted  to  sacrifice  their  boys' 
careers  by  higher  wages  offered  to  "  improvers  "  (at 
the  beginning)  than  to  apprentices.  But  there  is 
abuse  even  when  lads  are  duly  apprenticed  if  too 
many  apprentices  are  allowed.  The  Court  therefore, 
unwillingly  in  the  engineers'  case,^  limited  appren- 
tices to  one  apprentice  to  three  journeymen.  One  to 
three  is  the  recommendation  of  the  New  South 
Wales  Board  of  Trade  Committee,  and  it  is  pre- 
scribed in  the  Queensland  award  for  the  Queensland 
railways.  It  gives  a  liberal  allowance  to  provide  a 
perpetual  succession  of  competent  tradesmen.  But 
the  proportion  may  be  varied,  as  to  any  particular 
employer,  with  the  consent  of  the  union  or  of  the 
board  of  reference.  It  remains  to  be  seen  whether 
this  provision  will  be  successful  in  giving  the  needed 
flexibility. 

1  15  C.A,R, 


134  A  NEW  PROVINCE 

The  Court  also  granted  a  claim  that  apprentices 
get  four  hours  per  week  in  the  employer's  time  for 
attendance  at  a  technical  school  or  (if  no  technical 
school)  for  work  with  an  approved  correspondence 
school.  Certain  of  the  more  liberal  employers 
already  grant  this  privilege  or  more. 

The  Court  has  also  granted  the  claim  for  journey- 
men's overtime  rates  to  be  paid  to  apprentices  when 
they  work  overtime.  It  would  have  gladly  forbidden 
overtime  altogether  for  boys  beyond  eight  hours  in 
the  day.  It  is  easy  to  understand  the  injury  done  to 
growing  lads  by  excessive  hours  of  work.  It  has  to 
be  remembered  that  in  addition  to  eight  hours'  work 
in  the  factory  they  have  to  attend  the  technical 
school  also  and  to  attend  drills  for  compulsory 
training  under  the  Defence  Act.  The  New  South 
Wales  Parliament  twenty  years  ago  forbade  over- 
time for  lads,  and  several  employers  concurred  in 
the  view  that  the  lads  should  not  be  called  on  to 
work  at  night  at  all;  but  the  Court  cannot  award 
anything  which  is  not  within  the  ambit  of  the  dis- 
pute. The  union  frankly  said  that  the  claim  for 
journeymen's  overtime  rates  was  meant  to  prohibit 
all  overtime  for  lads  ;  and  yet  I  find  that  space  is 
given  by  a  newspaper  to  some  unnamed  employer  to 
complain  of  the  Court's  unwise  action  on  the  ground 
that  "  as  a  father  "  he  knows  that  so  much  money 
is  really  not  good  for  the  lads  !  It  does  not  seem  to 
have  occurred  to  him,  as  a  father,  that  lads  may 
suffer  from  excessive  hours  of  work. 


FOR  LAW  AND  ORDER  135 

The  Basic  Wage. 

In  Chapter  III.  I  referred  to  the  fact  that  a 
"  basic  wage  commission  "  had  been  appointed  by 
the  Federal  Government.  The  need  for  an  inquiry 
as  to  the  present  cost  of  Hving  had  been  urged  by 
the  Deputy  President,  as  well  as  by  myself,  in  our 
judgment ;  and  I  had  suggested  that  the  function  of 
ascertaining  the  cost,  on  alternative  regimens  stated 
by  the  Court  for  unskilled  labourers  and  as  for  speci- 
fied districts,  should  be  committed  to  the  Statis- 
tician, with  all  his  experience  and  facilities  and  his 
cool,  scientific,  impartial  attitude.  But  the  Govern- 
ment saw  fit  to  commit  the  work  to  representatives 
of  employers  and  employees,  chosen  by  itself,  with  a 
neutral  chairman.  Unfortunately,  under  the  main 
question  as  put,  the  commission  had  to  find,  not  a 
basic  wage  as  hitherto  well  understood  by  the  com- 
munity, not  the  necessary  wage  for  an  unskilled 
labourer,  but 

"  the  actual  cost  of  living  at  the  present  time, 
according  to  reasonable  standards  of  comfort,  in- 
cluding all  matter  comprised  in  the  ordinary  ex- 
penditure of  a  household,  for  a  man  and  his  wife  and 
three  children  under  fourteen  years  of  age,  and  the 
several  items  and  amounts  which  make  up  that  cost." 

It  will  be  observed  that  under  this  form  of  words 
the  vital  matter  on  which  the  report  would  turn  was 
the  "  reasonable  standards  of  comfort  " — reasonable 
in  the  opinion  of  the  commission ;  and  no  distinction 
was  to  be  made  between  what  is  reasonable  for  a 
porter  and  for  a  pattern-maker,  for  a  messenger  and 
for  a  millionaire.  The  report  of  the  commission, 
November,  1920,  was,  as  might  have  been  expected, 


136  A  NEW  PROVINCE 

a  cost  of  living  which  was  far  in  excess  of  the  basic 
wage  on  which  the  Court  had  been  acting,  in  ac- 
cordance with  the  rough  estimate  of  1907.  The 
report  found  ,^5  i6s.  6d.  per  week  (for  Melbourne), 
but  it  did  not  recommend  that  such  a  basic  wage 
should  be  enforced.  That  is  to  say,  if  the  report 
were  to  be  carried  out  in  practice  a  man  could  not 
be  employed  even  in  sweeping  a  yard  or  in  running 
on  messages  unless  he  were  paid  £s  i6s.  6d.  per 
week.  For  the  commissioners,  on  carefully  scanning 
the  question  put,  naturally  thought  that  it  was  not 
their  duty  "  to  discriminate  between  the  standard 
reasonable  for  one  type  of  employee  and  that  which 
is  reasonable  for  another  type."  The  result  of  the 
report  has  been  disastrous.  The  Commonwealth 
Statistician  has  reported  that  the  whole  produced 
wealth  of  the  country,  including  profits,  would  not 
be  sufficient  to  pay  such  a  wage ;  and  yet  many  of 
the  unions  have  combined  to  press  for  the  wage  as 
if  it  were  a  true  basic  wage.  In  the  case  of  the 
engineers  ^  the  Court  did  not  hesitate  in  refusing  to 
act  on  such  finding,  and  it  intimated  its  intention 
to  act  on  its  rough  estimate  of  1907  (as  increased 
to  meet  the  decreased  purchasing  power  of  money) 
and  until  a  more  satisfactory  standard  can  be  found. 
But  out  of  the  general  confusion  which  has  fol- 
lowed the  report  there  has  emerged  a  suggestion 
which  is  worthy  of  consideration.  Our  basic  wage, 
as  is  well  known,  includes  provision  for  a  man,  wife, 
and  "  about  three  "  dependent  children,  and  it  has 
to  be  paid  to  a  man  who  is  unmarried,  or  who  is 
childless  though  married,  or  who  has  more  than 
three  dependent  children.  The  object  of  this  uni- 
1  15  C.A.R. 


FOR  LAW  AND  ORDER  137 

formity  is  obvious ;  the  employer,  in  choosing  an 
employee,  should  not  be  driven  to  concern  himself 
with  the  man's  domestic  affairs  or  tempted  to  choose 
men  who  have  no  children  or  few  children  in  prefer- 
ence to  men  who  have  many.  The  course  adopted 
by  the  Court  seems  to  be  the  best  practicable  under 
existing  circumstances,  as  marriage  is  one  of  the 
normal  needs  of  a  man  in  a  civilized  community. 
The  basic  wage  should  include  some  reasonable 
allowance  for  family  life  and  children.  It  is  not  in 
the  interest  of  society  that  the  practice  of  advertising 
for  men  with  "no  encumbrances" — a  practice  not 
uncommon  already — should  become  general.  But  if 
the  State,  or  States,  should  see  a  way  to  provide 
for  a  subvention  in  aid  of  each  child,  whether  the 
money  is  to  come  from  the  Treasury  or  from  a  tax 
on  employers,  the  position  would  be  greatly  changed. 
I  observe  that  Mr.  Seebohm  Rowntree,  in  his  in- 
teresting book,  "  The  Human  Needs  of  Labour,"  has 
suggested  for  Britain  a  State  grant  for  any  children 
above  three  in  number  (pp.  141- 143).  The  New 
South  Wales  Government  has  approved  of  a  Mother- 
hood Endowment  Bill,  under  which  parents  would 
receive  a  payment  of  6s.  per  week  on  account  of  each 
child  in  excess  of  two  (for  two  children,-  not  three, 
are  taken  into  the  computation  of  the  basic  wage  by 
the  New  South  Wales  Board  of  Trade).  In  Australia 
there  may  be  constitutional  difficulties  in  the  way  of 
such  a  subvention  from  the  Federal  Treasury,  and 
the  States  may  not  all  concur  in  providing  it.  It 
may  be  urged  with  force  that  the  burden  of  the  pro- 
vision should  not  be  thrown  on  the  employers  by 
special  taxation,  as  the  country  as  a  whole  is  in- 
terested,  not    the    employers   only,   in   the  proper 


138  A  NEW  PROVINCE 

maintenance  of  children  and  in  the  growth  of  popu- 
lation. The  whole  subject  calls  for  careful  con- 
sideration, and  hardly  falls  within  the  scope  of  this 
work.  I  merely  mention  it  because  it  is  obvious  that 
the  basic  wage  payable  by  the  employer  may,  with 
such  a  subvention,  be  reduced  so  as  to  cover  the 
normal  expenditure  for  the  man,  or  for  the  man  and 
his  wife  alone.  In  the  meantime,  until  such  a  pro- 
vision be  made,  the  only  course  open  to  the  Court 
seems  to  be  to  follow  its  existing  practice,  making  the 
basic  wage  sufficient  to  cover  a  reasonable  allowance 
for  dependent  children. 

Standard  Conditions. 

In  Chapter  III.  I  referred  to  the  fact  that 
employers  are  beginning  to  recognize  the  advantages 
derived  from  the  existence  of  an  impartial  tribunal, 
so  far  as  it  reduces  to  system  and  order  the  conditions 
under  which  human  life  can  be  used  for  the  purposes 
of  industry  ;  and  to  the  fact  that  certain  great  under- 
takings have  agreed  to  vary  the  rates  of  wages  from 
time  to  time  according  to  the  system  adopted  by  the 
Court.  I  am  happy  to  be  able  to  state  that  such 
agreements  are  now  very  numerous.  Sometimes  the 
agreement  is  made  in  settlement  of  a  dispute,  without 
the  aid  of  the  Court ;  and  such  agreement,  when 
iiled,  is  deemed  to  be  an  award.  But  sometimes  the 
agreement  is  made  without  reference  to  any  specific 
dispute,  so  as  to  provide  an  automatic  adjustment  of 
wages  on  the  basis  of  the  Statistician's  figures  and  of 
the  Court's  practice.  Agreements  are  made  even  as 
to  hours  and  conditions  other  than  wages  in  the  light 
of  previous  pronouncements  of  the  Court.  Moreover, 
when  timework  rates  are  settled  by  the  Court,  the 


FOR  LAW  AND  ORDER  139 

parties  seem  to  be  able  to  settle  piecework  rates, 
taking  the  timework  wages  as  the  basis.  Even  the 
limits  of  weights  to  be  carried  or  handled,  or  moved 
on  trucks,  as  prescribed  by  the  Court  in  one  industry, 
are  generally  accepted  throughout  Australia.  Readers 
will  understand  now  the  importance  which,  in  the 
articles,  I  have  attached  to  the  "  standardizing  of 
conditions."  Often  the  plaint  contains  hundreds  of 
complicated  claims,  with  subdivisions,  and  the  Court 
is  asked  to  decide  two  or  three  points  only  which  are 
fundamental.  The  parties  agree  to  the  rest,  knowing 
from  the  decision  in  previous  cases  the  principles  on 
which  the  Court  is  likely  to  act.  Settled  standards 
are  impossible  under  what  is  misnamed  "  freedom  of 
contract,"  when  the  employer  is  "  free  "  to  give  or 
not  to  give  employment  to  the  applicant,  and  the 
applicant  is  "  free  "  to  choose  between  unfair  or  even 
dangerous  conditions  and  an  empty  larder;  and  when 
employers  disposed  to  be  liberal  are  forced  to  adopt 
the  illiberal  ways  of  competitors.  We  have  already 
standards  set  by  Parliament,  or  under  its  legislation, 
for  ventilation,  for  safety  from  machinery,  for  sanitary 
arrangements.  These  standards  are  enforced  what- 
ever the  effect  on  finances,  on  the  profits  of  the  under- 
taking or  of  the  industry  as  a  whole.  Standards,  if 
properly  established,  prevent  much  industrial  friction, 
conduce  to  contentment,  are  an  incalculable  saving  of 
time  and  energy.  Even  in  the  Court  the  discussions 
tend  to  diminish  in  length.  Some  persons,  seeing 
only  what  the  Court  awards,  have  the  notion  that 
the  Court's  proceedings  are  confined  to  compulsory 
awards,  resisted  awards.  The  truth  is  that  in  con- 
sequence of  the  Court's  settled  standards  there  is  now 
more  of  agreement  than  of  compulsory  order,  more 


140  A  NEW  PROVINCE 

of  conciliation  than  of  arbitration.  It  is  due  to  an 
unfortunate  ignorance,  an  ignorance  arising  from 
failure  to  study  the  Court's  doings,  that  we  sometimes 
find  leader-writers  speaking  of  the  Court  as  putting 
employers  and  employees  in  hostile  arrays.  They  are 
in  hostile  arrays  already,  Court  or  no  Court ;  but  the 
Court  brings  them  together  as  round  a  table,  and 
compels  them,  in  each  array,  to  consider  each  other's 
difficulties,  and  to  deal  with  proposals  on  lines  of 
reason  rather  than  force,  of  right  rather  than  might. 
Very  often  reasonable  employers  grant  conditions 
such  as  they  would  willingly  grant  but  that  their 
rivals  or  competitors  would  not,  without  the  influence 
of  the  Court,  follow  the  same  standards.  But  if  the 
recent  practice  of  creating  special  tribunals  should 
continue — tribunals  of  emergency,  of  panic,  created 
for  the  purpose  of  avoiding  or  terminating  a  stoppage 
of  operations  at  any  cost — tribunals  not  in  any  way 
co-ordinated  with  the  permanent  Court — the  advant- 
ages of  the  definite  standards  will  be  lost  or  much 
diminished. 

Effects  on  Industry. 

But  when  wages  are  increased  or  conditions  are 
imposed,  they  involve  expense ;  and  there  is  a  limit 
to  the  expenditure  which  an  industry  can  bear.  The 
expenditure  must  be  kept  under  the  income,  or  the 
business  will  not  be  carried  on  for  any  long  time. 
The  practice  of  the  Court  has  been  to  find  what 
award  would  be  fair  on  the  assumption  that  the 
industry  can  stand  it,  and  then  to  let  the  employers 
show,  if  they  can,  that  the  industry  cannot  stand  it. 
By  the  "  industry  "  I  do  not  mean  a  particular  under- 
taking ;  for  the  undertaking  may  be  carried  on  with- 


FOR  LAW  AND  ORDER  141 

out  proper  equipment,  or  with  slovenly  organization. 
The  Court  is  very  chary  of  prescribing  any  wage  lower 
than  the  proper  basic  wage ;  but  "  there  is  no  such 
necessary  rigidity  about  the  secondary  wage."  In 
the  case  of  the  engineers,^  as  there  are  so  many 
highly  skilled  workers,  the  secondary  wage  is  a  matter 
of  much  importance,  but  although  the  rates  of  pay 
as  affected  by  the  secondary  wage  were  keenly  con- 
tested, there  was  no  evidence  whatever  submitted  to 
the  Court  by  the  employers  to  establish  that  they 
should  not  be  called  upon  to  pay  such  secondary 
wages  as  should  be  found  to  be  just.  No  evidence 
was  tendered  to  show  the  Court  any  analysis  of  costs 
in  relation  to  prices,  of  the  effects  of  wages  or  the 
proposed  increase  of  wages  on  the  price  that  could  be 
charged.  It  is  well  known  that  the  ratio  of  the 
wages  cost  to  the  cost  of  material  varies  very  much 
with  different  commodities.  No  evidence  on  this 
important  subject  was  put  before  the  Court  by  any 
respondent — if  I  except  the  irrelevant  case  of  a  copper- 
mining  company  which  had  already  ceased  production 
owing  to  the  fall  in  the  price  of  copper.  Even  when 
the  advocate  for  the  union,  in  cross-examination, 
asked  an  employer  what  charge  he  made  for  lathe 
work  (turner's  work),  the  employer  indignantly  ob- 
jected to  answer.  Speaking,  as  he  did,  in  the  presence 
of  competitors,  there  might  be  an  objection  on  his 
part  to  disclose  in  public  details  of  his  business,  and 
I  therefore  offered  him  an  opportunity  to  give  me 
the  information  in  private  (under  Sec.  85)  ;  but  he 
still  objected,  and  I  did  not  see  fit  to  compel  an 
answer.  The  only  thing  worthy  of  notice  is  that  the 
employers  did  not  seek  to  prove  to  the  Court  that 
1  Engineers,  15  C.A.R. 


142  A  NEW  PROVINCE 

the  industry  could  not  pay  the  rates,  and  the  fact 
was  so  stated  in  the  judgment. 

Notwithstanding  these  facts,  a  daily  newspaper 
of  wide  circulation  accepted  from  certain  of  the 
employers  (mostly  unnamed)  statements  to  the 
effect  that  the  award  was  closing  up  their  under- 
takings, that  they  could  not  compete  with  imports 
from  abroad,  that  they  were  compelled  to  discharge 
employees,  etc.  The  public  of  Australia  are  more 
dependent  on  the  daily  press  for  information  than 
the  public  of  any  other  country  in  the  world ;  and 
the  public  would  not  see  the  Court's  judgment. 
Probably,  thinking  people  would  discount  these 
statements  as  being  one-sided,  and  would  attach 
more  value  to  the  findings  of  the  Court  which  had 
heard  both  sides ;  but  all  the  people  are  not  thinking. 
There  should  be  no  objection  to  criticism — even 
rough  criticism — of  what  a  Court  may  do  or  say. 
Personally,  I  take  a  strong  view  as  to  the  transcendent 
importance  of  freedom  of  expression  of  opinion — the 
importance  of  toleration  for  opinions  which  we  do 
not  favour.  From  the  nature  of  its  business,  the 
daily  press  of  Australia  is  almost  wholly  on  the 
side  of  the  employing  class;  and  it  has  frequently 
impugned  the  Court's  action.  But  the  frequent 
hostility  of  the  press  has  rather  helped  the  Court 
than  hindered  it  in  its  influence  on  the  other  class. 
It  is  a  delicate  matter  to  speak  about ;  but  as  I  am  now 
leaving  the  presidency  of  the  Court,  I  feel  free  to  say 
that  for  a  newspaper  to  publish  such  statements  as 
these  without  dates  and  particulars,  without  verifica- 
tion, without  examining  even  what  the  Court  has 
said  on  the  subject,  without  (in  most  cases)  insisting 
on  the  publication  of  the  names  of  those  who  will 


FOR  LAW  AND  ORDER  143 

take  the  responsibility  for  the  statement,  is  unfair  to 
the  public  and  injurious  to  its  interests. 

The  writer  of  the  article  in  the  New  Statesman  to 
which  I  have  already  referred  has  fallen  into  an  in- 
accuracy as  to  the  attitude  of  the  Court  with  respect 
to  the  effect  of  wages  on  the  industry.  He  says  that 
I  "  deliberately  refused  to  consider  in  fixing  wages 
the  rates  which  the  industry  could  bear."  This 
statement  is  very  nearly  true  as  to  the  basic  rate — the 
rate  necessary  for  decent  human  subsistence,  the 
living  rate.  But  the  Court  at  an  early  date — in 
1909,  in  the  Broken  Hillcase^ — differentiated  on  this 
subject  between  the  basic  wage  and  the  secondary 
wage  : 

"  The  remuneration  of  the  employee  cannot  be 
allowed  to  depend  on  the  profits  made  by  his  indivi- 
dual employer.  This  proposition  does  not  mean 
that  the  possible  profits  or  returns  of  the  industry  as 
a  whole  are  never  to  be  taken  into  account  in  settling 
the  wages.  So  long  as  every  employee  gets  a  living 
wage,  I  can  well  understand  that  workmen  of  skill 
might  consent  to  work  in  such  a  case  for  less  than 
their  proper  wages,  not  only  to  get  present  employ- 
ment, but  in  order  to  assist  an  enterprise  which  will 
afford  them  and  their  comrades  more  opportunities 
for  employment  hereafter.  For  this  purpose,  it  is 
advisable  to  make  the  demarcation  as  clear  and  as 
definite  as  possible  between  that  part  of  the  wages 
which  is  for  mere  living,  and  that  part  of  the  wages 
which  is  due  to  skill,  or  to  monopoly,  or  to  other 
considerations.  Unless  great  multitudes  of  people 
are  to  be  irretrievably  injured  in  themselves  and  in 
their  families,  unless  society  is  to  be  perpetually  in 
industrial  unrest,  it  is  necessary  to  keep  this  living 
wage  as  a  thing  sacrosanct,  beyond  the   reach   of 

1  3  C.A.R. 


144  A  NEW  PROVINCE 

bargaining.  But  where  the  skilled  worker  has 
secured  a  living  wage,  he  has  attained  nearly  to  a 
contractual  level  with  the  employer,  and,  with  caution, 
bargaining  may  be  allowed  to  operate." 

To  get  a  reduction  of  the  secondary  wage,  how- 
ever, the  employers  must  condescend  to  give  specific 
evidence,  detailed  evidence  ;  generalities  and  vague 
phrases  will  not  avail.  The  evidence  can  be  withheld 
from  all  but  the  Court,  if  so  desired. 


FOR  LAW  AND  ORDER  145 


CHAPTER  V. 

The  Future  of  Industrial  Tribunals. 

The  article  in  the  New  Statesman  to  which  I  have 
already  referred  says,  speaking  of  this  Court : 

"  Wage  regulation  as  an  experiment  has  been  well 
justified.  It  has  been  shown  that  wages  can  be 
raised  by  artificial  action.  But  certain  reactions 
and  difficulties  have  arisen  which,  though  difficult  to 
cope  with,  should  not  be  beyond  the  power  of  wise 
and  reasonable  statesmanship.  It  is  this  quality 
that  has  been  lacking."  \ 

To  my  mind,  these  words  state  the  position  cor- 
rectly in  substance.  We  hear  no  more,  of 
course,  of  the  "wage  fund,"  or  that  what  one 
worker  gains  must  be  taken  from  another  worker. 
We  hear  little  now  of  the  "  inexorable  laws  of 
demand  and  supply,"  which  used  to  be  treated  as 
more  inexorable  even  than  gravitation,  less  capable 
of  counteraction  even  than  gravitation.  Minimum 
wage  laws  of  a  kind  are  to  be  found  now  in  most 
civilized  countries.  It  used  to  be  said  dogmatically 
that  tribunals  for  industrial  disputes  were  absurd  and 
impracticable,  because  there  would  be  no  principles 
to  guide  the  tribunals.  A  Court  of  Law  has  to  obey 
Acts  of  Parliament  or  the  Common  Law,  but  what 
principle  was  an  industrial  tribunal  to  obey  ?  The 
employer  is  as  much  within  his  rights  in  offering 
los.  per  day  as  the  employee  is  within  his  rights  in 
refusing   to    take   employment    for   less    than    12s. 


146  A  NEW  PROVINCE 

Well,  the  experiment  has  been  tried,  and  principles 
and  standards  have  been  evolved  with  the  general 
approval  of  a  nation  which  calls  for  production,  but 
production  with  proper  treatment  of  the  producers ; 
and  the  principles  and  standards  have  stood  many  a 
test,  have  in  the  main  become  embedded  firmly  in 
the  nation's  life  and  activities.  From  the  nature  of 
the  case,  the  awards — or  collective  agreements  made 
under  the  influence  of  the  Court — operate  more  a-s  a 
restraint  on  employers  than  on  employees.  It  is  the 
workers  who  usually  take  the  initiative,  seeking  what 
they  assert  to  be  right  as  against  might.  The  con- 
tract of  employment,  if  not  regulated,  is  dictated  by 
the  stronger  party — usually  the  employer.  The 
result  is  that  employees  press  more  and  more  into 
the  Court,  form  more  and  more  federated  unions, 
with  the  object  of  getting  the  Court's  assistance. 
Some  of  the  documents  set  out  in  the  Appendix 
show  the  great  value  which  the  unions  ^generally 
attach  to  the  Court.  The  number  of  federal  logs  of 
claims  increases  year  after  year,  and  the  annual 
volume  of  reports  of  cases  becomes  bulkier.  There 
are  only  two  unions  that,  so  far  as  I  know,  disclaim 
the  assistance  of  the  Court — the  coal  miners  and  the 
seamen  ;  these  unions,  seemingly,  prefer  to  squeeze 
the  Government  and  the  country  rather  than  to  rest 
on  the  justice  of  their  claims.  In  Chapter  II.  I 
have  given  the  history  of  the  strike  of  the  coal 
miners,  and  in  Chapter  III.  the  history  of  the 
strike  of  the  seamen,  and  I  do  not  want  to  repeat 
myself. 

The  reasons  which  influenced  the  Whitley  Com- 

^  The  seamen,  however,  have  recently,  in  two  distinct  pro- 
ceedings, appealed  to  the  Court  for  its  assistance. 


FOR  LAW  AND  ORDER  147 

mittee  in  England  to  report  against  the  adoption  of 
compulsory  arbitration  are  inapplicable  to  the  com- 
pulsory arbitration  of  the  Australian  Court.  "There 
is  no  reason,"  the  Report  says,  "  to  believe  that  such 
a  system  is  generally  desired  by  employers  and 
employed,  and  in  the  absence  of  such  general  accept- 
ance it  is  obvious  that  its  imposition  would  lead  to 
unrest.  The  experience  of  compulsory  arbitration 
during  the  War  has  shown  that  it  is  not  a  successful 
method  of  avoiding  strikes,  and  in  normal  times  it 
would  undoubtedly  prove  even  less  successful." 
But  in  Australia  many  strikes  and  stoppages  have 
admittedly  been  averted  owing  to  the  fact  of  the 
existence  of  this  Court  as  well  as  of  State  Courts, 
and  because  the  employees  felt  that  they  had  some 
hope  of  redress,  in  times  of  rising  prices,  through  the 
Court's  machinery.  Actual  experiment  has  shown 
to  the  Australian  workers  that  the  Court  is  not  a 
"  Capitalistic  device,"  and  that  it  does  not  act  so  as 
to  compel  the  workers  to  accept  work  at  the  minimum 
rates  prescribed.  It  does  not  conduce  to  a  "  servile 
State."      . 

I  do  not  deny  that  Australian  unions,  or,  at  least, 
individual  members  thereof,  are  influenced  in  the 
unrest  of  these  abnormal  times  by  the  theories  which 
are  afloat  everywhere  as  to  a  completely  new  social 
order.  "  The  abolition  of  the  wage  system  "  often 
appears  as  one  of  the  objectives  in  union  rules,  and 
the  right  of  the  workers  to  "  the  whole  product  of 
the  industry  "  is  frequently  asserted.  We  hear  much 
of  Marx  and  his  principles,  as  expressed  by  conflict- 
ing schools  of  Marxians,  and  various  socialistic  or 
communistic  schemes  are  favoured.  It  is  evident 
also   that  the  action  (alleged  and  believed)   of  the 


148  A  NEW  PROVINCE 

Allied  Governments  in  giving  assistance  to  counter- 
revolutionaries in  Russia,  in  blockading  Russia,  and 
in  preventing  news  from  coming  from  Russia,  has 
had  a  very  bad  effect  here  as  elsewhere.  But  what- 
ever theories  the  workers  may  favour  for  the  ultimate 
solution  of  the  industrial  riddle,  they  know  that  in 
the  meantime  men  and  families  must  be  fed  and 
clothed  and  housed,  and  that  the  Court  offers  the 
best  means  available  for  securing  redress  for  griev- 
ances. They  know  full  well  that  they  never  could 
gain  by  strikes  or  by  purely  voluntary  agreement — 
agreements  made  without  compulsory  arbitral  power 
at  the  back — nearly  so  many  concessions  as  they 
secure  by  means  of  peaceful  discussion  before  the 
Court. 

"  Socialism  in  our  time."  Perhaps  so  ;  but  which 
brand  of  socialism  ?  The  morrow's  breakfast  is  of  more 
immediate  concern  than  the  millennium.  Where 
there  is  a  prospect,  as  in  Australia,  of  obtaining 
relief  without  losing  one's  job  and  its  pay,  the  rank 
and  file  of  the  union,  as  well  as  the  union's  re- 
sponsible leaders,  have  a  solid  argument  for  use  in 
the  union  meetings  against  strikes  ;  and  the  women  of 
the  homes  reinforce  the  argument  with  the  appeal, 
"Try  the  Courts  first."  People  talk  of  the  psycho- 
logy of  the  worker,  but  the  central  fact  affecting  the 
psychology  is  to  be  found  in  Browning's  lines  : 

"  Such  eyes  I  saw  that  craved  the  light  alone, 
Such  mouths  that  wanted  bread  and  nothing  else, 
Such  hands  that  supplicated  handiwork. 
Men  with  the  wives,  and  women  with  the  babes, 
Yet  all  these  pleading  just  to  live,  not  die." 

We  cannot  forecast  the  future.  I  do  not  presume 
to  advocate  any  of  the  modern  industrial  theories 
put   forward    by   many   earnest,   clever,    suggestive 


FOR  LAW  AND  ORDER  149 

writers  in  these  days ;  nor  do  I  propound  any  dis- 
tinctive theory  of  my  own  as  a  cure-all.  I  am  fully 
aware  that  any  interest  which  may  attach  to  this 
little  work  will  be  due  to  the  fact  that  it  deals  with 
actual  experiences  of  the  writer,  acquired  in  the 
course  of  discharging  official  responsibilities,  and  not 
to  any  theories  which  he  may  have  personally  formed 
as  to  society.  Such  theories  had  better  be  left  for  a 
treatise  of  a  different  character.  But  may  I  be  for- 
given for  saying  that  the  great  social  changes  of  the 
world — I  do  not  refer  to  political  changes,  but  to 
changes  which  go  to  the  root  of  custom,  of  habit,  of 
everyday  relations — have  never,  so  far  as  I  know, 
taken  place  in  pursuance  of  any  Utopian  theory 
applied  in  practice.  As  Marx  himself  has  said : 
"  Man  makes  his  own  history,  but  he  does  not  make 
it  out  of  whole  cloth ;  he  does  not  make  it  out  of 
conditions  chosen  by  himself,  but  out  of  such  as  he 
finds  close  at  hand.  The  traditions  of  all  past 
generations  weigh  like  an  Alp  on  the  brain  of  the 
living."^  Abuses  are  painfully  removed  or  reformed 
in  detail;  and  when  the  old  arrangements  do  not  fit  the 
new  conditions  they  are  eliminated  as  a  foreign  body 
from  the  flesh  (as  it  were)  of  society,  but  slowly  and 
with  inflammation.  That  which  has  become  useless 
to  society,  unreal  in  its  new  conditions,  passes  away, 
but  very  gradually.  As  with  slavery,  as  with  feudal- 
ism, so  probably  with  modern  industrialism.  The  very 
fact  of  universal  industrial  unrest  seems  to  show  that 
the  industrial  conditions  have  ceased  to  fit  mankind. 
As  slavery  passed  into  serfdom,  the  rights  of  the 
lord  becoming  limited  by  law  or  custom  ;  as  serfdom 

^  "  Eighteenth  Brumaire,"  p.  9.     I  quote  from  Mr.  Portus's 
"  Marx  and  Modern  Thought." 


150  A  NEW  PROVINCE 

passed  into  the  contractual  relation,  where  the  con- 
tract is  practically  dictated  by  the  employer,  who 
has  the  tools  and  the  capital ;  so  the  contract  of  em- 
ployment is  being  gradually  regulated  by  or  under 
the  State  in  the  interest  of  the  community.  It  may 
be  the  function  of  our  times  to  fix  the  regulations 
governing  the  use  of  human  life  in  industry.  Ideal- 
ists may  see  in  our  age  the  mission  of  John  the 
Baptist :  "  Prepare  ye  the  way  of  the  Lord,  make 
His  paths  straight."  Who  knows  but  that  some  day 
workers  may  not  employ  capital,  instead  of  capital- 
ists employing  the  workers  ;  or  that  Mr.  Webb's  idea 
of  a  social  Parliament  in  addition  to  a  political 
Parliament  may  not  be  carried  out  ?  But  in  the 
meantime,  even  as  the  extension  of  the  King's  peace 
over  the  land  led  to  the  suppression  of  private  wars 
among  the  barons  and  great  men  of  feudal  times,  so 
the  extension  of  the  nation's  power  to  industrial 
conflicts  will  suppress,  we  may  hope,  the  private 
wars  between  great  employers  and  great  unions. 
The  King's  writ  must  run  within  the  factory  as 
well  as  without,  and  as  to  any  injurious  treatment  of 
the  King's  subjects  engaged  in  industry.  Just  as 
employers  have  to  obey  regulations  prescribing  a 
minimum  of  safety,  a  minimum  of  ventilation,  a 
minimum  of  sanitary  arrangements,  and  whether  the 
regulations  interfere  with  profits  or  not,  so  they  will 
have  to  obey  laws  which  prescribe  a  minimum  of 
sustenance  for  the  human  lives  under  their  control, 
and  a  maximum  of  hours  and  fair  conditions. 

But  how  is  the  minimum  of  sustenance  to  be 
settled  ?  It  cannot  be  settled  either  by  the  party 
who  uses  the  labour  or  by  the  party  who  labours  ; 
nor  can  it  be  settled  by  both,  as  both  may  combine 


FOR  LAW  AND  ORDER  151 

(as  they  have  sometimes  combined)  against  the  con- 
suming public.  It  must  be  settled  by  or  under  a 
neutral  authority.  It  seems  that  whatever  scheme  of 
social  polity  we  may  favour,  we  are  compelled  to 
ascertain  the  proper  remuneration.  Even  guild 
socialists,  such  as  Mr.  G.  D.  H.  Cole,  who  favour  the 
abolition  of  "  wagery,"  and  the  substitution  of  guilds 
of  producers  of  given  commodities,  have  to  come 
back  to  the  problem,  What  is  proper  remuneration  ? 
When  it  is  pointed  out  that  such  a  guild,  with  its 
monopoly,  could  exploit  the  consumers,  could  raise 
the  price  of  the  commodity  at  its  will,  the  answer  of 
Mr.  Cole  is  that  anything  demanded  by  the  guild 
over  and  above  what  is  necessary  to  pay  a  proper 
remuneration  to  its  members  should  be  taken  in 
taxation  for  the  benefit  of  the  whole  community. 
To  ascertain  what  is  proper  remuneration  for  each 
worker,  or  each  kind  of  worker,  there  must  be  some 
machinery  organized ;  and  those  who  work  the 
machinery  must  be  independent  of  both  sides : 

"  Neither  beg  nor  fear 
Their  favour  nor  their  hate." 

Inasmuch  as  I  am  now  relieved  of  the  responsibility 
for  the  further  doings  of  the  Commonwealth  Court, 
I  feel  that  I  may  now  speak  more  freely  than  as 
President ;  and  the  public  of  Australia  are  entitled  to 
know  my  opinions  and  to  attribute  such  value  to 
them  as  they  think  fit.  I  should  like  it  to  be  dis- 
tinctly understood  that  my  resignation  is  not  in  any 
way  due  to  any  lack  of  faith  in  the  utility  of  the 
Court  to  the  public.  I  say  deliberately,  and  after 
much  thought,  that,  in  my  opinion,  the  system  of 
conciliation  and  arbitration  under  the  Commonwealth 
Act  is,  in  essence,  sound  and  beneficial  to  the  com- 


152  A  NEW  PROVINCE 

munity ;  and  that  with  proper  amendments  (including 
amendments  of  the  Constitution),  and  if  the  Govern- 
ment and  ParHament  act  with  common  sense,  it  can 
be  made  to  yield  even  richer  results.  Where  two 
great  bodies  of  men  differ  and  will  not  yield  one  to 
the  other,  and  yet  do  not  want  to  resort  to  force, 
there  is  no  device  that  I  know  better  than  that  of  the 
impartial  arbitrator.  This  the  Commonwealth  Act 
gives. 

It  is  true  that  the  responsibility  placed  on  the 
President  or  Deputy  President  is  very  great — greater 
as  to  amounts  of  money  involved,  and  greater  in 
direct  effects  on  human  lives,  than  that  of  all  the 
ordinary  civil  Courts.  It  is  true  that  he  is  empowered 
to  dictate  terms  of  employment  compulsorily — prac- 
tically, to  compel  the  parties  to  make  a  collective 
agreement — if  he  cannot,  under  his  power  of  concilia- 
tion, secure  a  voluntary  agreement.  It  is  true  that 
he  is  necessarily  unfamiliar  with  the  several  industries 
with  which  he  has  to  deal,  and  there  has  been  much 
talk  in  certain  quarters  to  the  effect  that  men  engaged 
in  an  industry  know  better  than  any  man  not  engaged 
in  it  the  "  intricacies  "  of  the  industry,  the  "  details  " 
of  the  industry.  This  talk  overlooks  the  fact  (i)  that 
there  is  no  arbitration,  no  dictation  from  an  outsider 
under  the  Act,  unless  the  parties  to  the  dispute  fail 
to  agree;  (2)  that  if  nothing  can  be  done  without 
voluntary  agreement  the  party  having  the  stronger 
strategic  position  at  the  time  always  carries  his  way, 
dictates  the  terms  to  the  other.  But  there  is  a  third 
fact  also — that  these  disputes  do  not  relate  to  the 
"intricacies"  or  "details"  of  the  industry  at  all. 
The  disputes  turn  on  the  proper  limitation  to  the  use 
of  human  life — the  use  of  the  most  valuable  asset  of  the 


I 


FOR  LAW  AND  ORDER  153 

nation,  the  treatment  in  industry  of  the  object  of  all 
public  activities — man ;  and  for  the  determination  of 
the  proper  limitations  one  who  is  outside  the  industry 
is  as  competent  as  one  who  is  inside.  With  the  view 
of  meeting  any  case  in  which  the  dispute  might 
involve  technical  knowledge  Sec.  35  of  the  Act  was 
enacted.  It  compels  the  Court  to  appoint  assessors 
"  for  the  purpose  of  advising  it  in  relation  to  the 
dispute,"  if  any  one  of  the  numerous  parties  to  the 
dispute  so  desire ;  but  it  is  significant  that  never  in 
the  long  histor}^'  of  the  Court  until  November  or 
December,  1920 — after  my  announcement  of  intention 
to  resign — has  there  been  any  application  for  assessors. 
No  doubt  the  parties  felt  that  assessors  would  be 
futile.  According  to  the  Section,  they  would  have  to 
be  chosen,  one  from  the  class  of  employers,  one  from 
the  class  of  employees ;  and  from  the  nature  of  the 
position  they  would  become  hot  partisans.  The 
President  would  have  to  decide  ultimately,  but  after 
a  greater  expenditure  of  time  and  labour  than  if  he 
sat  alone.  The  issues  of  wages,  hours,  and  other 
conditions  are  not  dependent  on  craft  knowledge. 
There  are  no  disputes  as  to  the  methods  used  in 
moulding,  or  as  to  the  manner  of  riveting.  Some- 
times, indeed,  the  Court  has  been  called  on  to  decide 
such  a  question  as  the  number  of  retorts  that  a  stoker 
should  be  called  on  to  charge  and  discharge  in  his 
shift ;  but  the  Court  has  refused  to  lay  down  any  rule 
on  the  subject  applicable  to  all  the  undertakings.  It 
has,  however,  committed  the  function  to  experts,  to 
the  boards  of  reference,  who  will  have  regard  to  the 
particular  undertakings  and  the  nature  of  the  plant 
and  appliances.  The  Court  adheres  to  propositions 
30  to  33  as  stated  in  Chapter  I.  (p.  13) :  "  The  Court 


154  A  NEW  PROVINCE 

leaves  every  employer  free  to  carry  on  the  business 
on  his  own  system  .  .  .  free  to  put  the  utmost 
pressure  on  anything  and  everything  except  human 
life." 

Under  the  circumstances,  the  experiment  of  indus- 
trial tribunals  is  not  likely  to  be  abandoned.  The 
fact  that  until  near  the  close  of  igi6  there  was  not 
any  general  strike  or  stoppage  of  work  in  aid  of  any 
dispute  with  which  the  Court  was  competent  to  deal ; 
the  fact  that  the  strike  of  1916  was  the  strike  of  the 
coal  miners — essentially  a  political  strike,  because  the 
Government  was  urging  conscription  for  the  war; 
the  fact  that  the  seamen's  strike  of  igig  was  due  to 
the  revolutionary  dogmas  of  a  few  non-Australian 
leaders,  and  that  the  other  seafaring  strikes  were  due 
to  the  mishandling  of  the  seamen's  strike  by  the 
Government ;  the  fact  that  nearly  all  the  unions  crave 
the  assistance  of  the  Court,  and  urge  the  extension 
of  its  powers;  the  fact  that  standards  have  been 
created  and  principles  established  on  which  the 
industries  needed  by  the  community  are  carried  on 
without  stoppages ;  the  fact  that  no  industry  (so  far 
as  is  known)  has  ceased  because  of  any  award ;  the 
fact  that  none  of  the  three  parties  in  the  Common- 
wealth puts  forward  in  its  programme  the  abolition 
of  arbitration ;  the  fact  that  the  Court  is  more  than 
ever  in  request  after  the  fiery  ordeal  of  war,  and  not- 
withstanding the  world  unrest  in  industrial  matters 
— these  facts  point  to  the  conclusion  that  the  Court 
is  meeting  a  real  public  need,  and  will  continue.  It 
matters  little  that  presidents  pass — and  perhaps 
governments,  perhaps  parliaments;  so  far  as  Australia 
is  concerned,  and  notwithstanding  all  the  defects  of 
the  Act  and  of  the  Constitution — and  of  presidents — 


FOR  LAW  AND  ORDER  155 

the  people  cling  to  the  system  of  industrial  tribunals. 
It  is  necessary,  however,  as  intimated  in  Chapter  III., 
that  the  State  tribunals  be  co-ordinated  with  the 
Commonwealth  tribunals.  We  cannot  leave  the  State 
and  the  Commonwealth  dealing  with  the  same  subject 
independently  at  the  same  time.  It  would  be  well, 
in  my  opinion,  to  amend  the  Constitution  by  com- 
mitting to  the  Commonwealth  Parliament  the  whole 
subject  of  industrial  relations,  and  to  let  that  Parlia- 
ment organize  a  co-ordinated  system  of  tribunals 
local  and  general.  It  is  a  grievous  wrong  to  those 
who  have  the  responsibility  of  carrying  on  business 
undertakings  that  they  should  have  to  obey  at  the 
same  time,  on  the  same  subject,  two  distinct  authori- 
ties. State  and  Federal.  If  there  is  to  be  regulation 
(and  there  must  be)  it  should  come  from  one  authority. 
What,  after  all,  is  the  goal  of  all  efforts  with  regard 
to  industries  ?  It  is  surely  to  get  ample  production, 
the  best  product,  and  the  best  producers ;  the  other 
matters  are  non-essential.  The  product  must  be  the 
best  in  quality  as  well  as  ample  in  quantity;  the 
producers  must  be  best  in  spirit  as  well  as  best  in 
body,  but  there  cannot  be  improvement  in  spirit 
without  ample  sustenance  for  the  body,  and  freedom 
from  carking  anxieties  as  to  livelihood.  The  com- 
munity wants  for  its  industries  workers  who  find 
satisfaction  for  their  human  nature  in  their  work; 
and  they  cannot  find  this  if  they  are  merely  irre- 
sponsible wage-earners.  At  present  the  workers  feel 
no  responsibility  for  the  success  of  the  industry ;  they 
take  all  they  can  get,  and  have  no  concern  as  to  the 
results.  They  do  not  generally  find  self-expression 
in  their  work  or  any  joy  of  creation.  One  class  is 
astrain  for  profit-making,  to  keep  down  expenses, 


156  A  NEW  PROVINCE 

including  wages  and  expenditure  for  the  wage- 
earners'  benefit ;  the  other  class  is  astrain  for 
demands  which  increase  the  expenses,  and  yet  feels 
no  responsibility  for  the  industry  itself.  In  this 
sense  there  is  a  real  class  war  and  a  real  danger. 
How  is  interest  in  the  work,  responsibility  for  the 
result,  to  be  fostered  ?  It  is  a  psychological  problem, 
and  I  see  no  answer  to  it  but  to  give  the  workers  "  a 
say  "  as  to  what  they  produce  and  how  they  produce. 
Unless  I  mistake,  it  was  Ireton  who,  at  the  constitu- 
tional discussion  in  Cromwell's  time,  said  that  if  the 
right  to  vote  be  given  to  all,  the  right  to  bread  must 
follow.  Perhaps  it  is  not  too  much  to  say  that 
the  right  to  vote  on  national  subjects  must  be 
followed  by  some  right  to  vote  on  industrial  subjects 
— subjects  which  are  even  more  intimately  connected 
with  daily  life.  Industrial  subjects  cannot  be  per- 
manently excluded  from  the  purview  of  free  men 
engaged  in  the  industry.  The  industry  cannot  be 
carried  on  without  capital  (I  do  not  say  capitalists, 
but  capital) ;  nor  can  it  be  carried  on  without  labour. 
The  capitalist  has  his  capital  at  stake ;  the  employee 
has  his  life  at  stake.  I  do  not  mean  by  his  life  merely 
his  food,  clothing,  shelter ;  I  include  the  whole  mass 
of  his  life's  powers  and  activities.  As  artists  select 
their  subjects  and  the  mode  of  treating  their  subjects, 
and  passionately  repudiate  dictation,  so  do  workmen 
in  their  own  degree.  Often  sidelights  are  thrown  by 
witnesses  during  the  Court  discussions,  sidelights 
which  are  all  the  more  valuable  as  coming  from 
minds  concentrated  on  some  other  subject,  some 
definite  claim ;  and  I  am  satisfied  that  much  of  the 
discontent  of  workers  arises  from  being  treated  as 
cogs  in  a  huge  machine,  and  that  there  would  be  far 


FOR  LAW  AND  ORDER  357 

more  interest  taken  in  the  work  and  the  results,  and 
even  valuable  suggestions  made  for  improvement, 
if  the  workers  were  taken  into  council.  Even  under 
existing  conditions,  men  show  delight  in,  affection  for 
a  good  tool  or  machine,  though  it  does  not  add  one 
penny  to  their  earnings.  I  have,  therefore,  again  and 
again,  before  and  during  and  since  the  war,  called 
attention  in  my  judgments  and  articles  to  the  im- 
portance of  bringing  the  workmen  and  the  manage- 
ment together  to  discuss  methods  and  results ;  and  I 
have  made  all  the  use  that  was  possible  to  this 
end  of  the  power  conferred  by  Sect.  40  to  create 
"  boards  of  reference " ;  but  such  boards  are  not 
sufficient.  They  have  to  be  confined  to  matters 
arising  tmder  the  award.  What  is  wanted  is  a  shop 
committee  (in  the  first  instance)  which  can  discuss 
any  matter  that  may  arise  in  the  industry  or  the 
undertaking.  Our  Constitution  and  our  Act  do  not 
allow  such  committees ;  and  I  see  nothing  for  it  but 
to  commit  to  the  Federal  Parliament,  by  amendment 
of  the  Constitution,  the  complete  power  over  all 
industrial  matters.  This  course  would  enable  the 
Parliament,  if  and  when  it  sees  fit,  to  limit  any 
undue  autocracy  of  those  who  supply  the  capital. 

It  may  even  be  suggested,  indeed,  that  there  is  no 
valid  ground  in  the  nature  of  things  why  those  who 
supply  the  capital  should  have  the  sole  direction  of 
industry.  Their  objective  is  profits ;  and  for  the  sake 
of  profits  they  often  limit  production,  turn  out 
inferior  and  tasteless  products,  degrade  the  lives  of 
the  producers.  Indeed,  if  any  means  could  be  found 
whereby  those  who  supply  the  capital — whether 
private  concerns  or  the  public — could  be  freed  from 
the  duty  of  conducting  the  industry,  could  be  turned 


158  A  NEW  PROVINCE 

into  a  kind  of  mortgage  debenture  holders  entitled  to 
receive  a  fixed  rate  of  interest — the  results  would 
probably  be  better  for  the  product,  in  the  artistic 
aspect,  for  the  methods  used  for  the  appliances,  for 
the  workers  (from  manager  to  labourers),  and  for  the 
community  as  a  whole.  The  usual  points  of  friction 
— remuneration,  hours,  conditions  of  labour — would 
be  much  more  effectively  handled  by  the  workers 
themselves  than  by  those  who  look  merely  for  profit; 
for  the  workers  know  the  facts  more  intimately.  Any 
regulation  from  above  would  be  rather  regulation  as 
between  the  public  as  a  whole — the  consumers — and 
the  workers,  or  as  between  the  workers  themselves ; 
and  the  brunt  of  disputes  would  fall  no  longer  on  the 
comparatively  small  and  much  abused  class  of  profit- 
makers.  But  there  probably  is  a  long,  long  way 
to  travel  yet  before  such  a  suggestion  becomes  a 
proposal  for  action. 

Companies  and  Employees. 

There  is  another  matter,  which  seems  unimportant 
at  first  sight,  but  which  tends  to  industrial  deadlocks, 
operating  as  a  hindrance  to  the  settlement  of  disputes. 
It  is  a  matter  as  to  which  I  do  not  see  clearly  a 
remedy  under  the  existing  state  of  company  law. 
Most  of  the  big  undertakings  are  carried  on  by 
companies ;  the  employer  is  a  company  consisting 
of  shareholders;  and  most  shareholders  know 
nothing  of  the  operations  of  the  business,  care  for 
nothing  except  dividends  and  the  value  of  their 
shares.  Directors  may,  or  may  not,  be  familiar  with 
the  operations  as  carried  on  from  day  to  day;  but 
they  feel  that  their  duty  is  to  their  shareholders,  and 
mostly  concentrate  their  attention  on  the  finances 


FOR  LAW  AND  ORDER  159 

and  the  interests  of  the  shareholders  only.  When  a 
dispute  comes  before  the  Court,  the  directors  send  a 
manager  or  secretary  as  their  advocate,  and  often  he 
can  consent  to  nothing  without  their  authority. 
They  even  fetter  him  with  instructions.  Unions  do 
the  same  with  their  advocates  sometimes.  The 
advocate  who  hears  the  discussions,  and  knows  the 
position,  would  often,  evidently,  yield  a  point  or 
assent  to  a  reasonable  arrangement  if  he  were 
allowed  a  free  hand ;  but  he  has  to  obey  his 
principals.  Those  who  know  are  cramped  in  their 
action  by  those  who  do  not  know.  If  the  directors 
and  the  committee  of  the  union  could  only  be  present 
at  the  discussion,  much  friction,  as  well  as  evidence 
and  argument,  could  often  be  saved ;  but  it  is  too 
much  to  expect  them  to  be  present.  If  they  could 
see  their  way  to  give  their  advocate  full  powers,  could 
make  him  their  plenipotentiary,  it  would  be  a  great 
gain.  Counsel  can  bind  their  client  by  a  consent 
or  a  compromise ;  why  should  not  the  industrial 
advocate  have  at  the  least  a  similar  power  ?  Too 
often  a  company  and  its  directors  bear  the  aspects 
to  the  emploj'ees  of  a  deaf  and  selfish  and  obstinate 
body  t)f  persons  who  care  nothing  except  to  keep  up 
the  receipts  and  keep  down  the  expenses,-and  who 
know  nothing  of  the  discussion  in  the  Court.  In  the 
recent  engineers'  case  I  announced  that  I  would 
accept  whichever  course  the  employers  preferred  on 
a  certain  subject ;  the  employers'  advocates  met  and 
unanimously  selected  the  course  and  announced  it. 
I  incorporated  their  choice  in  the  award,  and  yet  an 
official  of  a  great  company  concerned  wrote  (for  the 
directors)  a  long  statement  to  the  newspapers  com- 
plaining of  the  course  that  had  been  followed,  not 


i6o  A  NEW  PROVINCE 

knowing  that  it  had  been  requested  by  their  advocate 
and  the  other  employers'.  The  incident  points  to  the 
lack  of  contact  between  the  directors'  board-room 
and  the  Court ;  but  what  is  lacking  most  of  all  is 
direct  contact  between  the  ultimate  employer  and 
the  employees.  Neither  the  shareholder  nor  the  em- 
ployees see,  usually,  the  others'  point  of  view. 

Unemployment. 

There  is  one  industrial  sore  which  no  process  of 
arbitration  can  heal,  as  it  would  seem ;  it  is  unem- 
ployment. It  is  impossible  to  overstate  the  evil 
effects,  moral  and  physical,  on  the  worker  and  on  the 
community.  The  man  who  goes  morning  after 
morning  to  the  gate  and  is  turned  away  with 
"  Nothing  to-day  "  not  only  sees  his  wife  and  children 
suffering,  but  feels  personally  degraded.  It  is  the 
man  who  has  no  job  that  drinks  in  the  words  of 
those  who  favour  extreme  courses,  railing  in  his 
bitterness  against  the  society  which  fails  to  provide 
means  whereby  he  may  apply  his  powers  and  con- 
vert his  brawn  and  his  brains  into  bread.  The  fear 
of  unemployment  haunts  the  workers  all  their  lives ; 
it  is  the  ghost  present,  like  Banquo's,  even  at  a  feast. 
Unemployment  of  men  willing  and  able  to  work  is 
also  a  huge  waste  of  the  nation's  resources.  News- 
papers eagerly  quote  statistics  as  to  losses  in  produc- 
tion and  ia  wages  caused  by  strikes ;  but  the  losses 
caused  by  unemployment  and  curtailed  employment 
are  far  greater.  Last  May  it  was  estimated  that 
there  were  three  million  workers  out  of  work  in 
the  United  States,  that  many  more  were  working 
only  part  time,  and  that  the  loss  in  output  was  fully 
£6,000,000  per  day.     Unemployment  is  a  standing 


FOR  LAW  AND  ORDER  i6i 

reproach  to  our  modern  society ;  it  constitutes  a 
terrible  indictment  of  our  whole  social  organization. 
It  is  all  a  fault  of  organization,  and  the  remedy  must 
be  found.  The  main  cause  of  unemployment  is  insuffi- 
cient demand  for  the  goods ;  and  the  main  cause  of 
the  insufficient  demand  is  the  poverty  of  those  who 
would  like  to  purchase,  but  cannot.  There  is  no 
market  so  good  as  that  of  a  big  population  well  fed 
and  well  paid  all  round.  Over-production  of  wool  or 
wheat  generally  means  under-consumption  of  wool 
or  wheat — somewhere.  We  cannot  supply  foreigners 
with  money  wherewith  to  buy  our  products ;  but  can 
nothing  be  done  with  our  own  people  ?  It  has  been 
urged  that  in  slack  times  the  surplus  labour  force 
could,  under  proper  organization,  be  stored  up  in 
permanent  improvements,  such  as  add  to  the  nation's 
resources  to  meet  future  times  of  expansion.  In 
times  of  stagnation,  proceed  with  works  of  undoubted 
utility;  in  times  of  active  demand,  release  the  workers 
for  the  production  that  is  necessary.  **  What  you 
need,"  it  is  said,  '*  is  a  reservoir  which  will  take  the 
supply  when  the  need  is  less,  and  give  it  back  when 
the  need  is  more,  thereby  keeping  a  constant  circula- 
tion at  uniform  pressure."  But  organization  to  any 
such  end  must  follow  a  definite  and  continuous 
system;  the  present  haphazard  practice  of  Govern- 
ment finding  some  public  work  to  relieve  unemploy- 
ment when  business  is  slack  will  not  suffice.  The 
whole  subject  is,  as  I  have  intimated,  outside  the 
scope  of  industrial  tribunals ;  but  it  vitally  affects  the 
problems  with  which  the  tribunals  have  to  deal. 
"  Give  us,"  said  an  employee  witness  recently,  "  a 
guarantee  of  regular  employment,  and  all  these  diffi- 
culties will  vanish."     He  was  speaking  of  restrictions 

n 


i62  A  NEW  PROVINCE 

as  to  the  number  of  apprentices,  and  other  restric- 
tions incident  to  trades  unionism,  restrictions  which 
must  hamper  and  irritate  even  the  best  of  employers. 
I  find  that  Mr.  Philip  Snowden  in  his  recent  work, 
"  Labour  and  the  New  World,"  expresses  himself 
strongly  to  the  same  effect :  "  The  most  potent  of  the 
influences  which  prevent  the  workers  from  heartily 
co-operating  in  securing  the  maximum  output  is  the 
fear  of  unemployment.  If  the  assurance  of  perma- 
nent employment  were  given,  the  whole  outlook  of 
labour  on  the  question  of  production  would  be 
changed"  (p.  169).  As  Professor  Commons,  of  the 
University  of  Wisconsin,  has  pointed  out  in  the 
International  Labour  Review  (pp.  66-67),  manage- 
ment can  provide  security  of  the  job  if  security  is 
deemed  important  enough ;  and  as  the  workman's 
compensation  law — practically  a  tax  on  accidents — 
has  led  to  drastic  and  successful  measures  for  the  pre- 
vention of  accidents ;  as  health  insurance,  a  tax  on 
absences  through  illness,  leads  to  provisions  for 
securing  health  ;  so  may  we  expect  that  unemploy- 
ment insurance — a  tax  on  unemployment  through 
discharge  of  workmen — conduces  to  proper  organiza- 
tion whereby  the  employees  will  be  secured  in  regular 
work  and  wages. 

Special  Tribunals. 

But  whatever  may  be  the  necessary  shortcomings 
of  the  impartial  arbitrator,  it  is  clear  that  any  tribunal 
to  be  organized  must  be  permanent,  or  quasi- 
permanent — not  created  ad  hoc  for  a  particular  emer- 
gency ;  not  opportunist,  but  acting  on  defined  prin- 
ciples from  dispute  to  dispute.  A  union  that  is 
dissatisfied  with  the  tribunal's  award  on  some  subject 


FOR  LAW  AND  ORDER  163 

must  not  be  provided  with  another  tribunal  to  deal 
with  that  subject  afresh — taking  what  it  has  got 
under  one  arbitrator  and  insisting  on  a  new  arbitra- 
tion and  a  new  arbitrator  for  the  rest.  It  is  here 
that,  in  my  opinion,  the  Government  made  its  mistakes 
before  the  Industrial  Peace  Act,  and  where  the  Parlia- 
ment— I  say  it  with  all  respect — has  made  a  fatal 
mistake  in  that  Act.  It  was  this  error  in  particular 
that  induced  me  to  resign  the  presidency  of  the  Court. 
I  shall  not  use  this  book  for  the  purpose  of  an  attack 
on  the  Government.  The  statement  which  I  made 
on  the  subject  on  October  25,  1920,  more  than  a 
month  after  the  Act  was  passed,  was  made  with 
deliberation,  and  I  am  content  to  leave  my  reasons 
for  others  to  weigh  (see  Appendix  B).  I  merely  want 
to  give  the  public  the  benefit  of  such  experience  as  I 
have  had,  showing  the  conditions  under  which  not 
alone  the  Court,  but  any  substituted  tribunal,  can 
carry  on  its  functions  usefully. 

The  characteristic  feature  of  our  Courts  of  Justice, 
which  has  earned  for  them  the  respect  of  the  public 
and  made  them  efficient  instruments  in  aid  of  law 
and  order,  is  their  fearless  maintenance  of  what  they 
deem  to  be  right.  They  make  mistakes  sometimes; 
but  they  aim  at  asserting  the  rule  of  right  as  against 
the  force  of  might — whether  the  might  of  powerful 
barons  in  former  times,  or  of  powerful  ministers,  or 
of  powerful  men  of  wealth,  or  of  powerful  unions  in 
modern  times.  They  decline  to  act  under  threat ; 
they  will  npt  be  "  hustled  "  or  "  bluffed."  In  ordinary 
civil  proceedings  we  should  regard  it  as  something 
monstrous  if  a  disappointed  litigant  were,  by  threats 
of  running  amuck  in  the  streets,  to  induce  the  Govern- 
ment to  create  a  new  tribunal  and  give  him  a  new 


"^ 


i64  A  NEW  PROVINCE 

trial  for  his  claims  or  for  the  balance  thereof.  What 
would  be  unwise  as  to  civil  causes  is  sheer  madness 
in  industrial  causes,  with  all  their  psychological  re- 
actions on  great  masses  of  workers.  There  is  a  saying, 
"  The  wheel  that  squeaks  the  most  gets  the  most 
grease  ";  and  if  by  squeaking  or  striking,  or  threaten- 
ing strike,  a  union  finds  that  it  obtains  more  of  its 
demands,  why,  it  will  "  squeak,"  and  other  unions 
will  squeak  too.  It  is  hard  to  conceive  of  a  more 
effective  device  for  encouraging  industrial  stoppages 
and  for  making  the  work  of  the  Court  ineffective. 
Moreover,  the  Industrial  Peace  Act  (Sec.  29 ;  in 
Appendix  A)  provides  that  the  Court  shall  not  make 
any  award  or  order  inconsistent  with  the  award  of 
the  special  tribunal ;  but  there  is  no  provision  ^  con- 
verso  that  the  special  tribunal  shall  not  make  any 
award  inconsistent  with  the  award  of  the  Court.  The 
proper  attitude,  I  submit,  is  to  say :  "  You  have  your 
remedy  by  arbitration ;  you  shall  have  no  other  remedy 
by  arbitration,  and  we  shall  use  all  the  powers  that 
the  law  gives  us  if  you  hold  up  the  community  and 
exploit  its  needs." 

One  would  have  thought  that  these  considerations 
are  obvious.  Yet  I  cannot  find  in  the  Hansard  reports 
of  the  debates  on  the  Industrial  Peace  Bill,  in  either 
House,  any  allusions  on  the  part  of  the  Prime 
Minister  or  of  the  other  members  to  the  psychological 
effects  of  the  measure  on  the  workers.  One  member 
— and  one  member  only,  apparently— did  suggest  that 
the  President  or  Deputy  President  should  be  first 
consulted ;  but  even  that  suggestion  was  not  noticed 
afterwards. 

I  see  that  Lord  Bryce,  in  his  recent  valuable  work 
on   Democratic  Government  (p.   233),  says   of  the 


FOR  LAW  AND  ORDER  165 

Australian  labour  leaders  that  "they  know  human 
nature — which  is,  after  all,  the  thing  that  a  politician 
needs  to  know — quite  as  well,  and  the  particular  type 
of  human  nature  to  which  most  Australian  voters  be- 
long, very  much  better"  (than  their  antagonists).  He 
also  says  that  the  weak  point  of  Australian  politicians 
(of  all  parties)  is  "  their  deficient  education."  I  have 
sat  as  a  member  in  the  Victorian  House  and  in  the 
Australian  House,  and  I  do  not  think  that  any 
deficiency  of  education  is  the  weak  point,  for  the 
purposes  of  legislation,  when  the  members  are  com- 
pared with  members  of  the  British  or  of  the  American 
Houses.  What  seems  to  me  to  be  a  more  serious 
defect,  practically,  is  the  lack  of  foresight — the  lack 
of  the  habit  of  studying  the  consequences  of  a 
measure  in  its  details,  the  lack  of  thoroughness  in 
workmanship.  The  newspapers,  however,  which  are 
the  main  source  of  information  available  for  the 
public,  do  not  encourage  care  in  workmanship — they 
give  far  more  prominence  to  altercations  and  rude 
repartees  than  to  solid  work. 

But  if  my  resignation  has  the  effect  of  calling  the 
attention  of  the  public  to  the  dangers  of  the  policy 
recently  adopted,  it  will  have  a  good  result.  The 
errors  of  one  Government  and  of  one  Parliament  may 
be  rectified  in  the  light  of  experience ;  and  the  resolu- 
tion of  the  Trades  Hall  Council,  the  resolution  of  the 
Australian  Workers'  Union  (by  far  the  greatest  union 
in  Australia),  and  the  resolution  of  the  federation  of 
all  the  building  trades,  and  many  other  similar  reso- 
lutions, show  how  eagerly  the  unionists  crave  the 
assistance  of  the  Court  and  desire  that  it  shall  con- 
tinue its  functions.  The  resolution  of  the  Trades 
Hall  Council  was  followed  up  and  supported  by  a 


i66  A  NEW  PROVINCE 

deputation  from  many  unions  to  the  Prime  Minister, 
and  by  a  subsequent  deputation  to  the  Acting  Prime 
Minister,  but  with  no  result.  I  fancy,  however,  that 
some  of  the  ministers  and  members  now  see  that  a 
mistake  has  been  made,  see  that  they  have  taken  the 
wrong  road ;  for  there  is  more  reluctance  now,  appa- 
rently, to  create  special  tribunals  than  before  my 
announcement. 

Experiment. 

But  if  we  overlook  the  mistakes — temporary,  as  we 
must  hope — of  special  tribunals,  and  the  mistake 
made  by  the  Constitution  in  committing  industrial 
matters  both  to  the  States  and  to  the  Commonwealth, 
there  is  much  encouragement  to  be  derived  from  the 
contemplation  of  the  Australian  experiments  of  in- 
dustrial tribunals.  Australia  has  in  several  matters 
anticipated  other  countries  in  its  legislation — perhaps 
because  of  freedom  from  external  complications.  All 
the  States  adopted  the  Torrens  system  for  simplifica- 
tion of  titles  to  land,  in  spite  of  the  opposition  of  the 
lawyers,  and  with  great  success.  All  the  States 
anticipated  Britain  and  other  countries  in  providing 
for  vote  by  ballot,  disregarding  the  dogmatic  censures 
of  Sidney  Smith  and  many  others.  Australia  was, 
I  believe,  one  of  the  first  countries  to  adopt  female 
suffrage.  But  the  provisions  of  Courts  for  the  pro- 
tection of  human  life  employed  in  industries  is 
probably  the  most  characteristic  contribution  of  Aus- 
tralia (and  New  Zealand)  to  general  civilization. 
Naturally,  as  the  legislation  affects  so  many  powerful 
interests,  there  has  been  grumbling ;  but  the  antago- 
nism is  still  more  bitter  of  those  theorists  who  preach 
the  necessity  for  cataclysmic  revolution.     There  are 


FOR  LAW  AND  ORDER  167 

many  proposals  to  improve  the  system ;  but  there  is 
not  any  proposal  to  abolish  it.  The  minimum  wage 
laws  now  in  force,  and  projected,  in  Britain  and  in 
many  of  the  States  of  America,  as  well  as  the  legisla- 
tion of  Norway  and  Kansas,  and  the  projects  of  laws 
as  to  public  utilities  in  France  and  elsewhere,  show 
that  the  example  of  Australia  has  had  already  con- 
siderable effect  abroad.  It  may  fairly  be  said,  I 
think,  that  the  greatest  gains  which  humanity  has 
made  for  itself  have  been  the  result  of  bold  experi- 
mentation, with  correction  of  mistakes.  The  men 
who  saw  a  goal  before  them  and  made  for  it,  de- 
spising difficulties,  surmounting  obstructions,  ignoring 
abstract  and  untested  doctrines,  have  done  marvels. 
Some  seven  hundred  years  ago  the  great  Oxford  friar, 
Roger  Bacon,  preached:  "  Experiment,  experiment — 
pore  not  over  the  teaching  of  Aristotle  to  find  solu- 
tions." "Machines  for  navigating,"  said  he,  "are 
possible  without  rowers,  so  that  great  ships  suited  for 
river  or  ocean,  guided  by  one  man,  may  be  borne  with 
greater  speed  than  if  they  were  full  of  men.  Likewise 
cars  may  be  made  so  that  without  a  draught  animal 
they  may  be  moved  cum  impeUi  insestimabili,  as  we 
deem  the  scythed  chariots  to  have  been  from  which 
antiquity  fought.  And  flying  machines  are  possible, 
so  that  a  man  may  sit  in  the  middle  turning  some 
device  by  which  artificial  wings  may  beat  the  air  in 
the  manner  of  a  flying  bird."  In  these  days  the 
problems  of  industry  must  be  approached,  not  through 
the  dicta  of  the  political  economists  of  the  nineteenth 
century,  but  by  thoughtful  and  well-directed  experi- 
ment. There  are  many  analogies.  The  learned 
pundits  taught  in  the  time  of  Galileo  that  a  body  ten 
times  as  heavy  as  another  falls  ten  times  as  fast. 


i68  A  NEW  PROVINCE 

Galileo  climbed  the  Leaning  Tower  of  Pisa  and  put 
the  doctrine  to  a  test.  The  doctrine  turned  out  to 
be  wrong.  King  Charles  II.  propounded  to  his  new 
Royal  Society  the  question,  "  Why  does  a  dead  fish 
weigh  heavier  than  a  live  one  ?"  The  members  gravely 
addressed  themselves  to  explanations ;  but  some- 
one said,  "  I  doubt  the  fact."  Fish,  alive  and  dead, 
were  weighed,  and  the  live  weighed  as  heavy  as  the 
dead.  The  good  Earl  of  Shaftesbury  was  warned  by 
Senior  and  other  economists  that  the  industries  of 
England  would  be  ruined  unless  children  worked  in 
factories  for  ten  or  twelve  hours  per  day.  After  many 
fruitless  efforts  he  induced  Parliament  to  put  the 
matter  to  test ;  and  the  industries  became  more  pros- 
perous than  ever.  Learned  men  said  that  navigation 
by  steam  was  impossible,  that  air-flying  was  beyond 
human  powers ;  and  they  were  wrong.  They  told  us 
that  a  law  for  minimum  wages  was  absurd,  that  the 
wage  fund  was  fixed  by  irreversible  economic  laws, 
that  the  laws  so-called  of  demand  and  supply  were  in- 
exorable, that  industrial  tribunals  were  impracticable ; 
and  they  were  wrong.  We  all  make  mistakes,  and 
we  have  to  learn  by  our  mistakes.  The  man  who 
makes  no  mistakes,  it  is  said,  generally  makes  nothing. 
Industrial  tribunals  are  doing  their  best  for  human 
life,  the  only  wealth.  It  is  the  noblest  objective. 
We  work  and  learn. 


FOR  LAW  AND  ORDER  i6g 


APPENDIX  A. 

Industrial  Peace  Act,  1920;  assented  to  September  13,  19^20. 

Part  IV. — Special  Tribunals. 

13.  The  Governor  -  General  may  appoint  a  special 
tribunal  or  tribunals  for  the  prevention  of,  or  settlement 
of,  any  industrial  dispute  or  disputes. 

14.  (i)  A  special  tribunal  shall  consist  of  an  equal 
number  of  representatives  of  employers  and  employees 
respectively,  together  with  a  chairman. 

(2)  The  chairman  shall  be  chosen  by  agreement  be- 
tween the  representatives  of  employers  and  employees, 
or,  in  default  of  agreement,  shall  be  appointed  by  the 
Governor-General. 

15.  (i)  A  special  tribunal  shall  have  cognizance — 

(a)  Of  any  industrial  dispute  between  an  organiza- 
tion of  employees  on  the  one  hand  and  employers 
or  associations  of  employers  on  the  other  hand 
referred  to  it  by  the  persons  or  organizations  parties 
thereto ;  and 

(b)  Of  any  industrial  dispute,  as  to  which  a  con- 
ference has  been  held  under  Section  18  of  this  Act 
and  as  to  which  agreement  has  not  been  reached  as 
to^the  whole  of  the  dispute,  and  which  has  been 
referred  to  the  special  tribunal  iu  accordance  with 
Section  20  of  this  Act ; 

and  have  power  to  inquire  into  all  matters  relevant  to 
the  dispute  from  the  point  of  production  to  the  final  dis- 
posal of  the  commodity  by  the  employer  (in  the  case  of  a 
producing  industry),  and  the  decision  of  the  tribunal  on 
the  question  of  relevancy  shall  be  final : 


170  A  NEW  PROVINCE  ) 

Provided  that  no  dispute  as  to  which  the  hearing  has 
commenced  in  the  Court  shall  be  referred  to  a  special 
tribunal. 

(2)  No  evidence  relating  to  any  trade  secret,  or  to  the 
profits  or  financial  position,  of  any  witness  or  party  shall 
be  disclosed  except  to  the  tribunal  or  published  without 
the  consent  of  the  person  entitled  to  the  trade  secret  or 
non-disclosure. 

Penalty :  Five  hundred  pounds  or  imprisonment  for 
three  months. 

(3)  All  such  evidence  shall,  if  the  witness  or  party  so 
requests,  be  taken  in  private. 

16.  A  special  tribunal  shall  have  power  to  hear  and 
determine  any  industrial  dispute  of  which  it  has  cog- 
nizance, and  for  the  purpose  shall  have  (in  addition  to 
any  other  powers  conferred  on  it  under  this  Act)  all 
powers  which  by  the  Commonwealth  Conciliation  and 
Arbitration  Act,  1904-1918,  are  expressed  to  be  given  to 
the  Court  or  the  President  as  regards  an  industrial 
dispute  of  which  the  Court  has  cognizance ;  and  any  act 
or  omission  on  the  part  of  any  person  which  would,  if 
the  hearing  or  inquiry  were  the  hearing  of  an  industrial 
dispute  before  the  Court,  be  an  offence  against  the 
Commonwealth  Conciliation  and  Arbitration  Act,  1904- 
191 9,  shall  be  an  offence  against  this  Act. 

17.  Any  order  or  award  made  by  a  special  tribunal 
shall  be  binding  on  the  parties,  and  may  be  enforced  as 
an  award  of  the  Court. 

18.  (i)  A  special  tribunal  or  the  chairman  thereof,  or 
the  Minister,  or  any  person  thereto  authorized  in  writing 
by  the  Minister,  may  for  the  purpose  of  preventing  or 
settling  industrial  disputes  summon  any  person  to  attend, 
at  a  time  and  place  specified  in  the  summons,  at  a 
conference. 

(2)  "Any  person"  (last  occurring)  in  the  last  pre- 
ceding subsection  includes  not  only  persons  engaged  in 
or  connected  with  an  industrial  dispute,  but  also  any 


FOR  LAW  AND  ORDER  171 

person  engaged  in  or  connected  with  any  dispute  relating 
to  industrial  matters  (whether  extending  beyond  the 
limits  of  a  State  or  not),  and  relating  in  any  way  to  an 
industrial  dispute,  and  also  includes  any  person,  whether 
connected  with  an  industrial  dispute  or  not,  whose 
presence  at  the  conference  the  person  or  tribunal  sum- 
moning the  conference  thinks  is  likely  to  conduce  to  the 
prevention  or  settlement  of  an  industrial  dispute. 

(3)  Any  person  so  summoned  shall  attend  the  con- 
ference and  continue  his  attendance  as  directed  by  the 
person  or  tribunal  summoning  the  conference. 

(4)  The  conference  may  be  held  partly  or  wholly  in 
public  or  in  private  at  the  discretion  of  the  person  or 
tribunal  summoning  the  conference. 

ig.  Where,  at  the  hearing  before  a  special  tribunal, 
or  at  any  conference  summoned  in  pursuance  of  this 
Act,  an  agreement  as  to  the  whole  or  part  of  any 
industrial  dispute  is  made  in  writing  between  parties 
thereto,  the  agreement  may  be  filed  with  the  Industrial 
Registrar,  and  shall  thereupon  have  effect  in  all  respects 
and  be  binding  on  the  parties  and  enforceable  as  if  it 
were  an  award  of  the  Court. 

20.  Where  a  conference  has  been  held  under  Section  18 
of  the  Act,  but  agreement  has  not  been  reached  as  to  the 
whole  of  the  industrial  dispute — 

(a)  The  chairman  of  the  special  tribunal,  if  the 
conference  was  summoned  by  the  special  tribunal  or 
the  chairman  thereof,  may  refer  the  dispute  to  the 
special  tribunal ;  or 

(b)  The  Minister,  if  the  conference  was  summoned 
by  him  or  by  a  person  authorized  by  him,  may  refer 
the  dispute  to  a  special  tribunal. 

21.  During  the  currency  of  any  award  or  order  made 
by  a  special  tribunal  or  a  local  board  under  this  Act,  the 
Court  shall  not  have  jurisdiction  to  make  any  award  or 
order  inconsistent  with  any  such  award  or  order. 


172  A  NEW  PROVINCE 


APPENDIX  B. 

Statement  made  in  Court  by  Mr.  Justice  Higgins 
ON  Announcing  his  Resignation  (September  25, 
1920). 

Two  of  the  three  Bills  affecting  this  Court  have  now 
become  Acts  of  Parliament.  Parliament  has  expressed 
its  will,  and  there  is  no  hope  of  reconsideration.  As  in 
duty  bound,  there  being  no  request  for  my  opinion, 
I  have  refrained  from  comment  on  the  Bills  during  the 
deliberations ;  but  now  I  am  free.  I  see  no  course  open 
to  me  but  to  resign  my  office  as  President  of  the  Court 
as  soon  as  I  have  completed  certain  matters  partly 
heard,  and  it  is  due  to  the  public  that  I  should  state 
my  reasons.  Under  ordinary  circumstances,  it  would  be 
sufficient  to  state  my  reasons  to  the  Attorney- General ; 
but  the  present  Attorney- General,  as  Prime  Minister,  is 
the  author  of  the  Bills. 

It  is  now  generally  recognized  that  the  Court  has 
been  of  great  public  service,  keeping  the  wheels  of 
industry  moving,  standardizing  working  conditions,  and 
easing  the  conditions  of  the  workers  under  the  pressure 
of  the  rising  cost  of  living,  and  that  it  has,  within  the 
limits  of  its  jurisdiction,  saved  the  community  from  the 
violent  crises  which  have  occurred  during  and  since 
the  war  in  Great  Britain,  Canada,  the  United  States, 
Italy  and  elsewhere ;  few  people  know,  however,  what 
grave  perils  the  Court  has  averted.  By  the  Industrial 
Peace  Act  the  Prime  Minister  (unwittingly,  I  think) 
undermines  the  influence  and  usefulness  of  the  Court, 
and  creates  a  position  which  will  surely  give  rise  to 
many  industrial  stoppages. 

Part   IV.   of    the   Act    enables    the   Government   to 


FOR  LAW  AND  ORDER  173 

appoint  a  special  tribunal  for  the  prevention  or  settle- 
ment of  any  industrial  dispute.  This  is  to  be  a  tem- 
porary tribunal  for  a  particular  dispute,  and  it  is  to  be 
the  creature  of  the  Executive  Government.  From  the 
nature  of  the  case,  any  such  temporary  tribunal  must  be 
merely  opportunist,  seeking  to  get  the  work  of  the  par- 
ticular industry  carried  on  at  all  costs,  even  the  cost 
of  concessions  to  unjust  demands,  and  of  encouraging 
similar  demands  from  other  quarters.  On  the  other 
hand,  a  permanent  Court  of  a  judicial  character  tends  to 
reduce  conditions  to  system,  to  standardize  them,  to 
prevent  irritating  contrast.  It  knows  that  a  reckless 
concession  made  in  one  case  will  multiply  future 
troubles.  A  union  that  knows  that  a  certain  claim  is 
unlikely  to  be  conceded  by  the  Court  will  bring  pressure 
to  bear  upon  the  Government  for  a  special  tribunal ; 
and  the  special  tribunal  appointed  by  the  Government 
will  be  apt  to  yield  to  demands  for  the  sake  of  continuity 
in  the  one  industry  before  it,  regardless  of  the  conse- 
quences in  other  industries.  The  objectives  of  the 
permanent  Court  and  of  the  temporary  tribunal  are, 
in  truth,  quite  different — one  seeks  to  provide  a  just  and 
balanced  system  which  shall  tend  to  continuity  of  work 
in  industries  generally,  whereas  the  other  seeks  to  pre- 
vent or  to  end  a  present  strike  in  one  industry.  The 
chairman  of  the  recent  coal  tribunal  spoke  sound  sense 
when  he  said :  "  It  is  clearly  an  impossible  situation 
if  you  should  come  before  this  tribunal  to  see  what  you 
could  get,  and  if  you  are  not  satisfied  then  go  before 
some  other  tribunal  of  a  concurrent  jurisdiction."  I 
might  go  even  further,  and  say  that  a  permanent  Court, 
working  on  a  reasoned  system  and  for  many  industries, 
cannot  function  in  competition  with  temporary  tribunals 
created  to  avoid  or  end  a  specific  strike  in  a  specific 
industry.  A  tribunal  of  reason  cannot  do  its  work  side 
by  side  with  executive  tribunals  of  panic. 


174  A  NEW  PROVINCE 

Moreover,  the  awards  of  the  Court  are  no  longer  to 
have  that  finality  which  was  provided  in  the  Act  under 
which  the  Court  was  constituted  (Section  31).  I  take  a 
concrete  illustration  of  a  position  which  is  quite  prob- 
able. A  union  seeks  an  award  as  to  wages,  hours,  and 
many  other  conditions.  One  claim  is  for  a  thirty  hours' 
week — five  days  of  six  hours  each.  The  Court  grants 
other  claims,  but  refuses  the  claim  as  to  hours.  The 
union  accepts  what  is  granted,  but  does  not  drop  its 
movement  for  the  reduction  of  hours.  It  sends  to  the 
employers  a  demand  for  a  thirty  hours'  week,  or  (to 
avoid  a  possible  legal  difficulty)  a  demand  for  a  thirty- 
three  hours'  week.  The  employers  refuse,  and  the  union 
threatens  strike.  A  Minister  summons  a  compulsory 
conference  under  the  new  Act.  There  is  no  agreement. 
Then  the  Government  appoints  a  special  tribunal  to 
settle  the  dispute  as  to  the  thirty-three  hours,  and  that 
dispute  alone.  The  Government  appoints  the  chairman. 
The  chairman  owes  his  temporary  position  to  the 
Government,  and  has  no  responsibility  as  to  other 
industries.  The  Minister  refers  the  dispute  to  this 
tribunal,  and  the  tribunal  reconsiders  the  question  of 
hours,  which  the  Court  has  already  considered,  and  on 
which  it  has  made  an  award  as  part  of  a  whole  con- 
sistent and  interdependent  scheme.  The  tribunal  knows 
that  it  acts  under  a  threat  of  strike  if  the  hours  are  not 
granted,  and  it  is  naturally  anxious  that  operations 
should  not  cease.  If  the  claim  be  granted,  the  union — 
and  other  unions  —  will  attribute  the  victory  to  the 
weapon  of  strike,  and  strikes  and  threats  of  strikes  are 
thus  encouraged.  If  the  claims  be  not  granted,  the 
position  will  be  just  as  bad  as,  if  not  worse  than,  when 
the  Court  gave  its  award. 

This  is  no  fancy  picture.  I  have  on  other  occasions 
been  reluctantly  compelled  to  animadvert  on  the  action 
of    the    Prime   Minister   in   creating  tribunals   supple- 


FOR  LAW  AND  ORDER  175 

mentary  to  this  Court  under  the  pressure  of  strike  or 
threat  of  strike — in  the  cases  of  the  waterside  workers, 
the  marine  engineers,  etc.  It  was  pointed  out  that  the 
Prime  Minister  had  no  power  to  appoint  such  tribunals, 
but  now  Parliament  has  given  him  the  power,  by  an 
Act  passed  at  his  instance.  The  tribunals  will,  no 
doubt,  be  often  a  convenient  mode  of  yielding  to  strike 
without  expressly  admitting  it ;  the  disastrous  experi- 
ments of  the  seamen's  case,  the  marine  engineers'  case — 
where  the  Executive,  without  consulting  the  Court,  sub- 
stituted its  own  wage  scales  for  those  of  the  Court — will 
be  repeated.  I  decline  to  be  responsible  for  the  Court 
under  the  new  conditions. 

My  objection  is  not  to  the  creation  of  other  tribunals 
in  addition  to  this  Court.  To  create  some  permanent 
tribunals,  for  specific  industries  or  groups  of  industries, 
might  be  a  legitimate  way  of  relieving  the  Court  of  the 
pressure  of  business.  But  they  should  be  permanent, 
not  temporary,  and  there  ought  to  be  some  co-ordinating 
authority,  Hke  an  Appeal  Court,  to  bring  the  several 
tribunals  into  consistency  and  system  ;  for  the  tribunals, 
being  independent  of  each  other,  must  sometimes  differ 
in  their  awards,  and  there  is  nothing  that  creates  more 
industrial  troubles  than  contrasts  in  conditions  unless  it 
be  an  intermeddling  and  pliable  Executive. 

It  was  my  honoured  friend  the  late  Alfred  Deakin 
who,  as  Prime  Minister,  asked  me  to  undertake  the  work 
of  this  Court.  The  work  was  committed  to  me  in  1907 
for  seven  years.  My  second  term  will  expire  in  Sep- 
tember, 192 1,  and  nothing  but  the  strongest  reasons 
would  induce  me  to  abandon  the  trust  before  the  ap- 
pointed time.  It  is  true  that  the  work  is  very  exacting, 
and  that  a  release  from  the  duties  will  bring  me  much 
more  leisure  than  I  have  known  for  many  years,  with 
relief  from  intense  strain  and  from  partisan  abuse.  It 
is  true  that  the  Prime  Minister  has  not  consulted  either 


176  LAW  AND  ORDER 

Mr.  Justice  Powers  or  myself  as  to  the  details  of  any 
of  the  Bills,  or  asked  for  suggestions,  although  an 
experience  of  seven  years  in  the  one  case  and  of  fifteen 
years  in  the  other  would  have  been  gladly  made  available 
for  the  benefit  of  the  country.  It  is  true  that  the 
Government  has  neglected  for  years  to  relieve  the  con- 
gestion of  business  in  the  Court  by  taking  steps  for  the 
appointment  of  a  sufficient  numbej  of  Deputy-Presidents. 
It  is  true  that  in  August,  1917, 1  sent  in,  at  the  request 
of  the  Prime  Minister,  suggestions  for  the  improvement 
of  the  Act,  and  that  nothing  has  been  done  as  to  any  of 
the  suggestions  until  now,  and  that  several  other  urgent 
suggestions  based  on  my  actual  experience  have  been 
ignored  or  mishandled.  It  is  true  that  since  I  refused  to 
carry  out  his  will  in  the  case'of  the  waterside  workers,  in 
September,  191 7,  the  Prime  Minister  has  not  given  me 
any  idea  of  his  intentions  as  to  the  Court,  and  that  he 
even  intimated  (September  28,  19 17)  that  he  might 
give  Parliament  an  opportunity  to  consider  the  ad- 
visability of  removing  me  from  the  Court.  Yet  I  do 
not  think  that  even  such  treatment  would  justify  my 
resignation  ;  my  resignation  is  due  to  my  opinion  that 
the  public  usefulness  of  the  Court  has  been  fatally 
injured. 

I  make  this  announcement  at  once,  at  my  first  sitting 
in  this  Court  since  Parliament  committed  itself  to  this 
policy.  I  make  it  now  with  the  view  of  giving  the 
authorities  time  to  make  any  new  arrangement. 


INDEX 


Absenteeism  in  Labour,  130 

America  (U.S.A.),  constitution 
of,  compared  with  Australia, 
1-3  ;  new  merchant  fleet  reacts 
on  Australia,  81,99, 126;  basic 
wage  in,  94-96 

Apprenticeshfp,  9,  133,  134 

Arbitration,  compulsory,  miscon- 
ceptions about,  in  England  and 
U.S.A.,  40,108-110, 148  ;  inter- 
ference by  Executive  Govern- 
ment in,  86;  guides  parties 
to  voluntary  agreement,  91, 
140  ;  in  Norway,  Kansas,  and 
France,  108  ;  effect  of,  on 
industry,  140-144;  does  not 
call  for  expert  technical  know- 
ledge, 155 

Arbitration  Courts,  State  systems 
of,  in  Australia,  31,  39,  114, 
156-158 

Australia,  success  of,  in  legisla- 
tive experiment,  167 

Australian  Workers  Union,  atti- 
tude to  Court,  75,  76,  87 

Bacon,  Roger,  167 

Basic  wage  (or  living  wage),  a 

first  charge  on  product,   53  ; 

defined,  90 ;  how  ascertained, 

94  ;  on  same  basis  as  U.S.A., 

95  ;  see  also  Wages 

Basic  Wage  Commission  of  1920, 

133-135 
Belloc,  Hilaire, and  "The Servile 

State,"  45,  no 
Boards  of  Reference,  22,  49,  50, 

105,  106,  III,  155 
Boy  labour,  48,  128,  133,  134 
Browning,  Robert,  148,  151 
Bryce,  Lord,  164 

Capitalism,  159,  160 
Cases  mentioned  in  text :  Rex  v. 
Barger  (Excise  Tariff  Act),  4 ; 


Holden  v.  Hardy  (U.S.A.), 
56;  McCulloch  V.  Maryland 
(U.S.A.),  65 ;  Waterside 
Workers  v.  Alexander  (25 
C.L.R.  434),  III;  Federated 
Gas  Employees  (27  C  L.R. 
72),  III,  112 

Casual  employment,  loi,  102, 
129,  130 

Class  war,  29,  158 

Cole,  G.  D.  H.,  61,  151 

Collective  agreement,  difficulties 
as  to,  109 

Common  rule,  not  authorized, 
21,  22 

Commons,  Professor,  162 

Companies,  as  employers,  160, 
161 

Competition,   consideration  of, 

7.  51 

Conditions  of  labour,  laborious- 
ness,  8,  9,  13  ;  loads,  47,  48, 
92  ;  offensive,  46,  47,  100,  loi  ; 
hours,  56-59 ;  continuous  pro- 
cesses, 89  ;  standardizing,  90, 
91,  138-140 ;  mechanical  appli- 
ances, 103 

Conference,  compulsory,  24-26, 
73 

Constitution  of  Australia,  Fede- 
ral, power  to  create  Arbitra- 
tion Court,  2  ;  compared  with 
U.S.A.,  2  ;  need  for  altera- 
tions, 115,  157 

Control  of  industry,  claim  of 
employees  for  voice  in,  49, 50, 
106,  158-160 

Cost  of  living  in  Melbourne  in 
1907,  4  ;  differences  between 
localities,  10  ;  use  of  statistics 
to  determine,  29,  30  ;  need  of 
scientific  inquiry  as  to,  52-54, 
95.  135  ;  current  criticisms  of 
statistician's  methods,  54 

Costing,  need  of  figures  of,  142 

77  12 


178 


INDEX 


Court  of  Conciliation  and  Arbi- 
tration, origin,  1-3  ;  how  limi- 
ted, 2, 18, 19-21, 65 ;  principles 
established  in  adjudication, 
6-13  ;  costs  of  proceedings,  20, 
113;  lawyers  not  employed, 
20  ;  length  of  proceedings,  20 ; 
no  common  rule  for  industry, 
21,  22 ;  power  to  vary  and  to 
withhold  awards,  24 ;  con- 
fidence of  disputants  in,  27  ; 
effect  of  limitation  of  powers 
of,  16  ;  voluntary  submissions 
to,  27,  75  ;  opposition  to,  27 ; 
effect  of,  on  strikes,  35,  36, 
61 ;  awards  not  flouted,  35  ; 
jurisdiction  extended  to  Fede- 
ral Public  Servants,  36 ;  con- 
sistency of  awards  necessary, 
41  ;  prevents  stoppage,  59-61, 
79,  80  ;  refuses  arbitration  to 
strikers,  62,  71,  82,  83  ;  juris- 
diction to  "prevent ' '  disputes, 
73 ;  acceptance  of  standards 
fixed  by,  91,  92  ;  advantage 
of,  during  war  period,  93 ; 
defects  in  Act  establishing, 
110- 117;  enforcement  of 
awards  of,  no;  assistance 
sought  by  States,  in  ;  need 
of  increased  staff  of,  114; 
magnitude  of  amounts  and 
interests  involved,  121,  154; 
objections  to,  considered,  155, 
156;  power  to  appoint  asses- 
sors, 156;  results  achieved  by, 

157 
Craftsmanship,  127-128 

Dewey,  John,  106 

Employers,  functions  of,  aot 
controlled  by  Court,  13,  155  ; 
seek  aid  of  Court,  26,  75  ; 
oppose  Court,  28 ;  strong 
strategic  position  of,  40 ;  regu- 
lation of  methods  of,  47,  48 ; 
refusal  to  dictate  to,  48,  loi ; 
follow  system  of  Court,  91 ; 
need  of  costing  figures  of,  142 ; 
instructions  to  advocates,  160- 
162 


Excise  Tariff  Act,  3,5;  (Rex  v. 
Barger),  96 

Factory  legislation  in  England, 

168 
Freedom  of  bargaining,  44,  48, 

98 
Freedom  of  contract,  so-called, 

19 

Goldmark,  Miss  Josephine,  48, 

125 

Great  Britain,  effect  of  higher 
merchant  service  wages  on 
Australia,  81  ;  coal  commis- 
sion in,  106 

Guild  Socialism,  153 

High  Court  of  Australia,  how 
constituted,  3 ;  and  Excise 
Tariff  Act,  3  ;  and  common 
rule,  21 ;  and  Boards  of  Refer- 
ence, 21 ;  prohibition  from,  to 
Arbitration  Court,  29,  72,  112 ; 
and  minimum  wage,  43 ;  effect 
of  decisions  of,  on  Arbitration 
Court,  81,  82,  III,  112 

Holidays  and  leave  of  absence, 
12 

Holmes,  Oliver  Wendell,  60 

Home,  Sir  Robert,  80 

Hours  of  work,  12,  56-59 ;  forty- 
eight-hour  week,  56,  57 ;  of 
miners  and  smelters,  57;  eight- 
hour  day  for  seamen,  88,  89; 
forty  -  four  -  hour  week  in 
machine  industries,  124,  125  ; 
for  boys,  133,  134 

Improvers,  g,  133 

Industrial  Peace  Act,  Australia, 

1920, 163, 164 ;  text  of,  169-171 
Industry,  control  of ;  see  control 

of  industry 
International  Labour  Review,  162 

"Koombana"  case,  the,  23 

"Law  of  supply  and  demand," 

19,  20,  145 
Leave  of  absence  and  holidays 


INDEX 


179 


Leverhulme,  Lord,  106. 

Living  wage ;  see  wages  and 
basic  wage 

Local  tribunals  and  local  dis- 
putes, ii5 

Lockouts,  how  far  prohibited  by 
Act,  2 

Lowell,  James  Russell,  34 

Machinery  and  methods,  new, 
freedom  to  use,  13 

Machinists,  wages  of,  127-128 

Marx,  Karl,  149 

Metropolitan  Gas  Company, 
Melbourne,  favours  regulation 
by  Court,  90,  93 

Mines,  exhaustion  of,  7 ;  hours 
worked  in,  56,  57 

Minimum  wage  (see  also  wages), 
6-12,  14,  42-45,  98,  99  ;  de- 
crease of,  30 ;  workers  not 
obliged  to  accept,  43-44  ;  does 
not  prevent  higher  rates,  44 ; 
basis  of  differentiation  in,  46 ; 
how  ascertained,  94 

Money,  purchasing  power  of,  as 
applied  to  secondary  wage, 
55.  126 

Newcastle  (N.S.W.),  steel  works 
at,  132 

New  protection,  the,  2 

New  Republic,  the,  106 

New  South  Wales,  Wages 
Boards  and  Arbitration  Courts 
in,  31,  32;  motherhood  en- 
dowment proposal,  137 

Newspapers,  attitude  to  Court, 
142  ;  and  Parliament,  163 

New  Statesman,  the,  131, 143, 145 

Output,  consideration  of,  by 
Court,  132 

Pastoral  industry,  wages  in,  87, 
88;  hours  in,  115,  116 

Piece  work,  14,  59,  102,  103 ; 
and  production,  131,  132 

Political  economy,  orthodox, 
166-168 

Preference  to  unionists,  16-18 


Prices,  consideration  of,  7 ;  in 
relation  to  wages,  34,  126,  127 

Profits,  consideration  of,  7 

Prohibitions,  addressed  to  Court, 
29 

Public  interest,  consideration  of, 

13.  72 
Public  servants,  federal,  powers 
of  Court  extended  to,  36 

Queensland,  Arbitration  Court 
in,  31 

Resignation  of  Justice  Higgins, 
165,  166;  statement  of  grounds 
of,  172-176 

Rest  periods,  58 ;  of  shearers, 

59 
Rockefeller,  J.  D.,  junior,  106 
Rowntree,  Seebohm,  95,  137 

Sankey,  Justice,  and  coal  com- 
mission in  England,  106 
Seamen     and     maritime     em- 
ployees ;  strike  of,  81,  82, 117, 
118;  wages  of,  88;  hours  of, 
88,  89 
Shaftesbury,  Earl  of,  168 
Shearers,  14 ;  rest  periods  of,  59 
Shop  committees,  need  for,  104, 

103,  159 
Slow  workers,  9 
"  Smokos,"  58 
Snowden,  Philip,  162 
Social  reconstruction,  schemes 

of,  37.  38,  77,  122,  149,  150, 

166-168 
South  Australia,  wages  boards 

in,  31 

"Special  Cargoes,"  wages  for, 
47,  107,  108 

Special  tribunals,  supplementary 
to  court,  85,  1 17-122,  162-166, 
170-175  ;  as  constituted  by  In- 
dustrial Peace  Act,  169-171 

Speed  of  working,  59 

Standard  of  living,  increased  by 
Court,  96,  97 

Stoppages  of  work,  59-68 

Strikes,  how  far  prohibited  by 
Act,  2 ;  sympathetic,  23,  64, 
68-71,  79;  effect  of  court  on, 


i8o 


INDEX 


35)  36,  78, 80  ;  meaning  of,  42  ; 
of  coal  miners  in  191 6,  62-64  ; 
ofglass  bottle  makers,  in  1917, 
64 ;  of  N.S.W.  railwaymen  in 
1917,  64 ;  of  seamen  in  1919, 
82,  83  ;  of  marine  engineers, 
83  ;  of  gas  workers,  84,  85 

Tasmania,  wages  boards  in,  31 
Technical  schools,  and  appren- 
ticeship, 9,  10,  133,  134 
Times,  London,  the,  as  to  attitude 
of  labour  movement  to  Court, 

87 

Timewdrk,  102,  103 

Tips,  10,  II 

Trade  unions,  essential  to  work 
of  Court,  15 ;  influence  of 
leaders  of,  for  peace,  15  ;  pre- 
ference to  members  of,  15-18  ; 
opposition  of,  to  Court,  28 ; 
deregistration  of,  66,  67  ;  seek 
registration  under  Court,  66; 
greater  unions  favour  Court, 
75,  87,  146,  165 ;  instructions 
to  advocates  representing,  159 

Trade  unions  mentioned  in 
text :  Amalgamated  Society 
of  Engineers,  46,  64,  80,  103, 
125,  127-130,  131,  132,  134, 
141,  159;  Artificial  Manure 
Employees,  47 ;  Australian 
Workers  Union  (A.W.U.),  30, 
74.  75i  87,  88,  165;  Boot  Em- 
ployees, 6  n.,  9  n.,  10  n. , 
21,  22,  32  ;  Broken  Hill 
Unions,  6  n.,  9  n.,  10  n., 
13  n.,  56,  57,  143;  Builders' 
Labourers,  6  n.,  8  n.,  9  n., 
10  n„  12,  16,  22  n.,  30,  33,  56; 
Building  Trades  Federation, 
165 ;  Coal  and  Shale  Em- 
ployees, 62,  65  n.,  117,  153; 
Clothing  Workers,  89,  91 ; 
Coopers,  89  n.,  98,  99  n.,  103, 
104  n. ,  131  n. ;  Engine  Drivers, 
6  n.,  7  n.,  8  n.,  10  n.,  16  n., 
19  n.,  20,  22  n.,  25  n. ,  29  n., 
32  n.,  33  n.,  41  n.,  51  ;  Engine 
Drivers  (River),  25  n.  ;  Feder- 
ated Railway  Association, 
65  n.  ;  Fruit  Employees,  10  n., 


11  n.,  13  n.,   14,  21,  23  n., 

24  n,,  26  n.,  49  n.,  74,  89  n. ; 
Gas  Employees,  6  n.,  8  n., 
10  n.,  13  n.,  23  n.,  34,  48  n., 
51  n.,  52,53,  54  n.,  56,  56  n., 
84,  85,  89  n.,  100,  loi,  104, 
112  n.,  119 ;  Glass  Bottle 
Makers,  25  n. ,  64 ;  Glass 
Founders,  89  n. ;  Independent 
Workers  Federation,  17 ;  Iron 
Workers,     72 ;      Journalists 

25  n. ;  Liquor  Employees 
23  n.,  25  n.,  89n.,92;  Marine 
Cooks,  etc.,  5,  7  n,,  8  n.,  9  n. 

26  n.,  83 ;  Marine  Engineers 

12  n.,  16  n.,  20.  n.,  48  n.,  55  n. 
83, 107, 108 ;  Marine  Stewards 
8  n.,  10  n.,  II  n.,  13  n.,  41  n. 
83  ;  Meat  Trade  Employees 
25,  26,  49  n.,  54  n..  55  n.. 
57  n-i  59 ;  Merchant  Service 
Guild,  6  n.,  8  n.,  10  n,,  12  n 

13  n.,  22  n.,  27,  48  n.,  54  n. 
69,  73  n.,  83,  98  n.,  126,  127 
MetalMiners(Barrier  Branch) 
6  n. ;  Pastoralists  Employees 
58,  59,  58  n.,  75.  76,  88,  92 
115,   116,   121 ;    Postal  Eleo 
tricians,  6  n.,  8n.,  12  n,,  13  n. 
30  n.,  48  n.  ;  Postal  Linemen 
etc.,  48  n.  ;   Public  Servants 
Federal,  36;    Seamen,  6  n. 
8  n,,  10  n.,  12  n.,  13  n.,  17 
22  n.,  24  n.,  26  n.,  81,  82,  88 
89,  99,  117,  118,  146  n.,  154 
Shearers,  etc.,  6  n.,  7  n.,  14 
16,  21,  30  n.,  48  n.,  58,  87 
Ship  Dockers,  etc.,  89  n.,  loi 
Timber  Workers,    124,    129 
Tramway  Employees,  14   n. 
15  n.,  16  n,,  18  n.,  26  n.,  30 
41   n.  ;    Waterside    Workers 
10  n.,  24,  26  n.,  43,  44,  47,  58 
65-71.  73.  86  n.,  9on.,92,  93 
101-104,    107,    III,   118,    iig 
121,  131  n. 

Unemployment,  125,  160-162 
Unions  ;  see  under  Trade  Unions 

Variation  of  awards,  24 
Vernon,  Dr.,  125 


INDEX 


i8i 


Victoria,  wages  boards  in,  31 ; 
Premier  of,  refuses  to  create 
special  tribunal  for  strikers, 
85.  119 

Wages,  "  fair  and  reasonable," 
3  ;  for  skilled  and  unskillea 
labour,  4,  5,  6,  7,  55,  56 ;  first 
basic  wage  award,  3,  4,  136, 
137;  basic  and  secondary,  6, 
7,  42,  89,  90,  97,  98,  126,  127, 
143  - 145  ;  principles  estab- 
lished in  settlement  of,  6-12, 
52 ;  based  on  highest  func- 
tion, 8 ;  based  on  average 
capacity,  8 ;  and  laborious- 
ness,  8 ;  for  casual  and  regular 
workers,  9  ;  for  aged  and  slow 
workers,  9;  of  "improvers," 
9 ;  for  dangerous  or  dirty 
work,  10,  46,  47,  100,  loi  ; 
necessary  expenses  of  em- 
ployees, 10;  tips  ("bunce"), 
10;  keep,  76 ;  of  women,  11, 


49  ;  for  piecework,  14 ;  and 
freedom  of  contract,  19;  de- 
crease of  minimum,  30,  31 ; 
minimum,  42-45,  98,  99 ;  for 
special  cargoes,  47;  in  pastoral 
industry,  87,  88 ;  of  casual 
workers,  90;  vicious  circle, 
theory  of,  answered,  97 ; 
weekly  and  casual,  loi,  102, 
129,  130  ;  of  machinists  and 
tradesmen,  127,  128 

Wages  Boards,  State  Systems 
of,  in  Australia,  31  ;  de- 
ficiencies of,  32 ;  effect  of 
Court  on,  93 

Wages  system,  the,  76,  77,  150 

Webb,  Sidney,  132,  150 

Weekly  hiring,  loi,  102, 129, 130 

Weights  of  loads,  47 

Western  Australia,  Arbitration 
Court  in,  31 

Whitley  Report,  105,  146,  147 

Women,  wages  of,  11,  49  ;  hours 
of,  89  ;  influence  of,  148 


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